Both sides claim victory in Supreme Court ruling quashing South Taranaki seabed mining consents

Thursday, 30 September 2021

Iwi opposed to seabed mining off the Taranaki coast have welcomed a Supreme Court ruling as the “final nail in the coffin” of the controversial proposal.

At the same time, Trans-Tasman Resources (TTR), the company behind the mining application, say they are satisfied the ruling provides a pathway forward for their mining consents to be “re-approved”.

In a unanimous decision released on Thursday, the Supreme Court upheld previous High Court and Court of Appeal decisions quashing consents allowing TTR to annually extract 50 million tonnes of iron sand from the South Taranaki Bight seabed.

Debbie Ngarewa-Packer, who led Ngāti Ruanui iwi of South Taranaki through successive court challenges to put a stop to the proposal, said the ruling was “the final nail in the coffin.”

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**

The appeal ruling was a coup for her iwi, she said, describing it as a David and Goliath battle.

“We couldn’t have asked for a better decision,” she said.

“This was always about a small grassroots group who didn’t want our beach polluted. We wanted to continue to surf and eat, and this activity threatened that.”

That the “legacy battle” will now set a precedent in law, was just a bonus, Ngarewa-Packer, Te Pāti Māori co-leader, said from Wellington.

The Supreme Court found the Environmental Protection Authority (EPA) erred in law when it granted consents to TTR in 2017, and unanimously rejected the company’s appeal.

It further ruled the decision on whether mining can go ahead would now be sent back to the EPA’s decision-making committee to reconsider, a decision that has been welcomed by the EPA.

Ngarewa-Packer described such a reconsideration as a “technicality”.

“The courts have determined this type of activity doesn’t sit within the legislation.”

But as a company, TTR considered it a positive to have the consents referred back to the authority.

“TTR is satisfied with the SC decision,” executive chairman Alan Eggers said in a press release.

“The legal issues are now very narrowly defined and there are no aspects of the judgment that are an impediment to TTR having the consents re-approved. The Court’s rulings provide a pathway to a successful resumption of proceedings with the EPA.”

The ruling is the latest in a long-running issue that began in 2013 when TTR applied for consent to mine in a 66-square-kilometre area off the South Taranaki coast.

While this was denied by the EPA in 2014 due to environmental concerns, the authority’s decision-making committee granted the consents, by majority, in 2017.

This was later overturned in the High Court after iwi, and environmental, and fishing groups challenged the decision as wrong in law.

TTR then took the matter to the Court of Appeal in the hope of having the High Court's decision quashed.

However, this was dismissed and the company turned to the Supreme Court.

In its 130-page judgement, the Supreme Court dealt with a number of issues concerning the proper interpretation and application of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act.

All five justices of the court agreed the EPA committee had erred in law when granting the mining consents in 2017.

In particular, a majority of the court held the committee failed to apply the decision-making criteria relevant to TTR’s application.

TTR claimed the Court of Appeal had leaned too strictly on environmental protection and that assessment of the mining bid must consider economic benefits as well environmental impact.

But the Supreme Court disagreed, falling on the side of environmental protection, in particular as it related to marine mammals and seabirds.

'Given the uncertainty of information relating to the effect of TTR's activities on these species, the EPA's Decision Making Committee simply could not be satisfied that the conditions it imposed were adequate to protect the environment from pollution.'

The court also found the committee had not adequately considered the Treaty of Waitangi when making its decision.

Mike Neho, of Ngā Rauru Kītahi iwi in South Taranaki, said the decision was a significant win.

“This is the first time that kaitiakitanga and tikanga have been tested at this level of law and this will be a game changer for recognition of iwi interests and decisions about the environment going forward”

Echoing Neho, Natalie Coates, legal counsel for the iwi, said it was a “precedent setting case” that would have implications beyond the specific legislation.

“The court has made a strong statement in respect to Te Tiriti and tikanga. This will have implications for all the Treaty clauses in New Zealand statutes.”

Cindy Baxter, of Kiwis Against Seabed Mining (KASM), said there was now nothing standing in the way of the Government moving to ban the experimental industry from New Zealand waters.

There is currently a bill calling on the Government to prohibit seabed mining in New Zealand in the ballot box.

Greenpeace Aotearoa seabed mining campaigner James Hita said the announcement was a win for people and for nature.

'This ruling is a victory for the ocean, and for people power. For the better part of a decade, iwi, Greenpeace, KASM and coastal communities have worked together to oppose the proposal to mine in the South Taranaki Bight. And today we won.'

Hita said the decision sent a “clear message to other mining companies waiting in the wings”.

“You’re not wanted in Aotearoa or the Pacific.”