Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board

JurisdictionNew Zealand
CourtSupreme Court
JudgeWilliam Young,Ellen France JJ,Ellen France J,Glazebrook J,Williams J,Winkelmann CJ
Judgment Date30 September 2021
Neutral Citation[2021] NZSC 127
Docket NumberSC 28/2020

[2021] NZSC 127

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Court:

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

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
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

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

The majority held that the DMC erred in law by not applying the decision-making criteria relevant to TTR's application in order to achieve the environmental bottom line imposed by s10(1)(b) EEZA (purpose — to protect the environment from pollution by regulating or prohibiting the discharge of harmful substances and the dumping or incineration of waste). The majority held that the effect of s10(1)(b) EEZA was to provide an operative restriction on marine discharges and dumping such that if the environment could not be protected from pollution through regulation, then the discharges or dumping had to be prohibited. William Young and Ellen France JJ differed in that they did not consider s 10(1)(b) imposed an environmental bottom line, but they held that, nevertheless, the statutory scheme meant the overall assessment of the decision-making criteria may be tilted in favour of environmental factors.

The Court held unanimously that DMC had also made a fundamental error by not complying with the requirement to favour caution and environmental protection in s61 EEZA (information principles) and s87E EEZA (information principles relating to discharges and dumping). That was illustrated by the conditions imposed by the DMC relating to marine mammals and seabirds. Given the uncertainty of information relating to the effect of TTR's activities on those species, the DMC could not be satisfied that the conditions it imposed were adequate to protect the environment from pollution. The Court also clarified the approach to the Treaty of Waitangi clause in s12 EEZA (Treaty of Waitangi) holding that a broad and generous construction 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. In particular, s12(c) EEZA provided a strong direction that the DMC was to take into account the effects of TTR's proposed activity on existing interests in a way that recognised the Crown's obligation to give effect to the Treaty principles. These existing interests include tikanga-based customary rights and interests, including kaitiakitanga. Tikanga as law had to be taken into account by the DMC as “other applicable law” under the decision-making criteria where its recognition and application was appropriate to the particular circumstances of the application at hand. The DMC had made various errors in relation to those issues.

The appeal was dismissed. The Court upheld the lower Courts' decision to quash the DMC decision. By a majority decision, the matter was referred back to the DMC for reconsideration.

  • 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...

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