High Court quashes TTR marine consent, sends it back for reconsideration

Tuesday 28th August 2018

Trans Tasman Resources' marine consent for an offshore iron sands project has been quashed after the High Court found the consenting authority's interpretation of an adaptive management approach was too narrow.

The 35-year consent was granted in August on the casting vote of the chair of a decision-making committee appointed by the Environmental Protection Authority. Among the many conditions was a requirement for two years of monitoring and data gathering before commencement of the project.

"The appeal is allowed and the decision of the decision-making committee is quashed," Justice Peter Churchman said in today's judgment. "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 appeals were lodged by conservation, fishing and iwi groups after the company was given permission to extract 50 million tonnes of seabed material a year. It would export up to 5 million tonnes of iron sand per year from the ocean floor in the South Taranaki Bight, generating $400 million of export revenue annually.

The decision is another blow for TTR, which had its initial consent bid for the project turned down in 2014 - largely due to a lack of baseline information on the expected impacts of its proposal. There is little baseline environmental data available for much of the country's 4.3 million square-kilometre exclusive economic zone.

Kiwis Against Seabed Mining and Greenpeace today hailed the High Court’s decision to uphold their appeal as 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,” said Cindy Baxter, chairperson of Kiwis Against Seabed Mining.

Seven separate appeals were lodged that were consolidated and heard together. While Justice Churchman conceded there was no error in law on a number of the appeals, "the narrower interpretation of the concept of adaptive management approach, applied by the DMC, is inconsistent with the meaning of that term derived from s 64 of the EEZ act," according to the judgment.

The court said the adopted interpretation was inconsistent with the purpose of the act of "protecting the environment from pollution by regulating or prohibiting the discharge of harmful substances." It was also inconsistent with the obligation that where information available is uncertain or inadequate, a marine consent authority must favour caution and environmental protection. "The error was material and may well have influenced the outcome of the consent application," the court said.

The EPA said it noted the decision and "will now carefully consider the findings and the implications."

Alan Eggers, executive chairman of TTR, wasn't immediately available to comment.

(BusinessDesk)

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