Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board

• Jurisdiction: New Zealand
• Court: Supreme Court
• Judge: William Young,Ellen France JJ,Ellen France J,Glazebrook J,Williams J,Winkelmann CJ
• Judgment Date: 30 September 2021
• Neutral Citation: [2021] NZSC 127
• Docket Number: SC 28/2020

Between

Trans-Tasman Resources Limited

Appellant

and

Taranaki-Whanganui Conservation Board,

Cloudy Bay Clams Limited,

Fisheries Inshore New Zealand Limited,

Greenpeace of New Zealand Incorporated,

Kiwis Against Seabed Mining Incorporated,

New Zealand Federation of Commercial Fishermen Incorporated,

Southern Inshore Fisheries Management Company Limited,

Talley's Group Limited,

Te Ohu Kai Moana Trustee Limited,

Te Rūnanga O Ngāti Ruanui Trust,

Royal Forest and Bird Protection Society of New Zealand Incorporated and The Trustees of Te Kāhui O Rauru Trust

First Respondents

and

Environmental Protection Authority

Second Respondent

[2021] NZSC 127

Court:

Winkelmann CJ, William Young, Glazebrook, Ellen France and Williams JJ

SC 28/2020

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Environment, Indigenous Issues — appeal against a Court of Appeal decision which upheld the High Court's decision to quash a consent granted by the decision-making committee of the Environmental Protection Authority allowing the appellant to mine iron sands in the South Taranaki Bight, an area within New Zealand's exclusive economic zone — effect on marine life — Treaty of Waitangi — Tikanga — Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012

Counsel:

J B M Smith QC, V N Morrison-Shaw and P F Majurey for Appellant

J D K Gardner-Hopkins for Taranaki-Whanganui Conservation Board

R A Makgill and P D M Tancock for Cloudy Bay Clams Ltd, Fisheries Inshore New Zealand Ltd, New Zealand Federation of Commercial Fishermen Inc, Southern Inshore Fisheries Management Co Ltd and Talley's Group Ltd

D M Salmon QC, D A C Bullock and D E J Currie for Greenpeace of New Zealand Inc and Kiwis Against Seabed Mining Inc

R J B Fowler QC, J Inns, H K Irwin-Easthope and N R Coates for Te Ohu Kai Moana Trustee Ltd, Te Rūnanga o Ngāti Ruanui Trust and the Trustees of Te Kāhui o Rauru Trust

M C Smith, H E McQueen and P D Anderson for Royal Forest and Bird Protection Society of New Zealand Inc

V E Casey QC and C J Haden for Second Respondent

D A Ward and Y Moinfar-Yong for Attorney-General as Intervener

• A The appeal is dismissed.

• B Leave is reserved to a party to apply to the High Court for directions if necessary.

• C Costs are reserved.

JUDGMENT OF THE COURT

SUMMARY OF RESULT

(Given by the Court)

1 The appellant sought marine consents and marine discharge consents in order to undertake seabed mining within New Zealand's exclusive economic zone. By a majority decision, the decision-making committee (DMC) of the Environmental Protection Authority granted the application for consents with conditions under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the EEZ Act). The first respondents successfully challenged the DMC decision in the High Court as wrong in law. The Court of Appeal dismissed the appellant's appeal, upholding the High Court's decision to quash the decision of the DMC and refer the matter back for reconsideration. The appellant was granted leave to appeal to this Court on the question of whether the Court of Appeal was correct to dismiss the appeal.

2 The Supreme Court has unanimously dismissed the appeal. In doing so, the Court addressed the correct approach to a number of provisions of the EEZ Act.

3 In particular, Glazebrook J (with whom Williams J agreed 1) held that the purpose provision in s 10 provides an overarching framework for decision-making under the Act and, to this extent, has substantive or operative force. 2 This means that s 10(1)(b), which applies to marine discharges and dumping, creates an environmental bottom line in the sense that, if the environment cannot be protected from material harm through regulation, then the discharge or dumping activity must be prohibited. 3 The assessment of whether there is material harm requires qualitative, temporal, quantitative and spatial aspects to be weighed. 4 The s 10(1)(b) requirement is cumulative on the requirement in s 10(1)(a) (which applies to all consent applications) to achieve sustainable management. 5

4 The operative force of s 10(1) means the relevant decision-making criteria in s 59 must be weighed by the decision-maker in a way that achieves both the s 10(1)(a) and s 10(1)(b) purposes. 6 However, the bottom line in s 10(1)(b) does not mean applicants for discharge consents are limited to showing there is no material harm. Rather, they may also accept conditions that avoid material harm, mitigate the effects of pollution so that harm will not be material, or remedy it so that, taking into account the whole period of harm, overall the harm is not material. 7 To meet the bottom line, remediation will have to occur within a reasonable time in the circumstances of the case and, in particular, in light of the nature of the harm to the environment, the length of time that harm subsists (that is, the total duration of projected harm until remediation occurs), existing interests and human health. 8 All else being equal, economic benefit considerations to New Zealand may also have the potential to affect the decision-maker's approach to remediation timeframes, but only at the margins. 9

5 Accordingly, decision-makers must follow a three-step test when assessing applications for marine discharge and dumping consents under the EEZ Act: 10

• (a) Is the decision-maker satisfied that there will be no material harm caused by the discharge or dumping? If yes, then step (c) must be undertaken. If not, then step (b) must be undertaken.

• (b) Is the decision-maker satisfied that conditions can be imposed that mean:

  • (i) material harm will be avoided;

  • (ii) any harm will be mitigated so that the harm is no longer material; or

  • (iii) any harm will be remedied within a reasonable timeframe so that, taking into account the whole period harm subsists, overall the harm is not material?

  If not, the consent must be declined. If yes, then step (c) must be undertaken.

• (c) If (a) or (b) is answered in the affirmative, the decision-maker should perform a balancing exercise taking into account all the relevant factors under s 59, in light of s 10(1)(a), to determine whether the consent should be granted.

6 The Chief Justice took a similar view to Glazebrook and Williams JJ's approach to s 10, with one key difference. 11 She did not consider economic benefit considerations were relevant in any circumstances to the assessment of materiality and so could not be taken into account in terms of setting remediation timeframes. 12 Nevertheless, for pragmatic reasons, the Chief Justice was content to adopt the

three-step approach set out above at [5], in order to reach a majority. 13 This therefore represents the majority approach to how discharge and dumping applications are to be determined

7 William Young and Ellen France JJ differed in that, on their approach, what is required is an overall assessment of the relevant factors in s 59, albeit those factors need to be addressed with both s 10(1)(a) and (b) purposes in mind. 14 Section 10(1)(b) does not set an environmental bottom line. 15 Material harm was not automatically decisive, but s 10(1)(b)'s sole focus on protection and other elements of the statutory scheme meant the balancing exercise may well be tilted in favour of environmental factors where discharge and dumping consents are concerned. That decision, however, would need to be made on a case-by-case basis. 16

8 In considering the effect of the Treaty of Waitangi clause in s 12 of the EEZ Act, all members of the Court agreed that a broad and generous construction of such Treaty clauses, which provide a greater degree of definition as to the way Treaty principles are to be given effect, was required. An intention to constrain the ability of statutory decision-makers to respect Treaty principles should not be ascribed to Parliament unless that intention is made quite clear. 17 Here, s 12(c) provided a strong direction that the DMC was to take into account the effects of the proposed activity on existing interests in a manner that recognises and respects the Crown's obligation to give effect to the principles of the Treaty. 18 It followed that tikanga-based customary rights and interests constitute “existing interests” for the purposes of the s 59(2)(a) criterion, including kaitiakitanga and rights claimed, but not yet granted, under the Marine and Coastal Area (Takutai Moana) Act 2011. 19

9 Further, drawing on the approach to tikanga in earlier cases such as Takamore v Clarke, 20 all members of the Court agreed that tikanga as law must be taken into account by the DMC as “other applicable law” under s 59(2)(l) of the EEZ Act where its recognition and application is appropriate to the particular circumstances of the consent application at hand. 21

10 The Court was also largely in agreement on the remaining issues relating to the approach to the requirement to consider economic benefit in s 59(2)(f), 22 whether the conditions imposed amounted to adaptive management, 23 whether the DMC erred in not requiring a bond, 24 the approach to the casting vote, 25 whether the appeal raised questions of law, 26 what is required to take into account the nature and effect of other marine management regimes under s 59(2)(h) 27 and the approach to the information principles in ss 61 and 87E. 28 On the latter two issues, the points of disagreement flowed inevitably from the different approaches to s 10(1)(b). Thus, the majority held that if the other marine management regime provided for a bottom line, this could not be outweighed by other s 59 factors, 29 and that discharge consents may be granted on incomplete information, as long as that is the best available information and that,

taking a cautious approach and favouring environmental protection, the decision-maker is satisfied that the bottom line in s 10(1)(b) is met. 30

11 Although differing on the...