Greenpeace of New Zealand Corporated v Minister of Conservation

[2017] NZHC 3114

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2017-485-1010 [2017] NZHC 3114

UNDER

the Declaratory Judgments Act 1908

BETWEEN

GREENPEACE OF NEW ZEALAND CORPORATED

Applicant

AND

MINISTER OF CONSERVATION First Respondent

AND

SCHLUMBERGER NEW ZEALAND LIMITED

Second Respondent

On thepapers:
Counsel:	D Salmon and D Bullock for Applicant R Roff and E Jamieson for First Respondent J Knight and B Scott for Second Respondent
Judgment:	13 December 2017

JUDGMENT OF CLARK J

[1]      This is an application for leave to appeal my refusal to set down for urgent hearing, an application for a declaration.

[2]      The proceeding seeks declarations as to whether the effects of the second respondent’s survey described in the report prepared for the second respondent, and provided by it to the first respondent, titled The Western Platform Multi Client 3D Seismic Survey Marine Mammal Impact Assessment and dated 23 November 2017,

mean that the survey activities described in that report require a permit under s 41(1)

GREENPEACE OF NEW ZEALAND CORPORATED v MINISTER OF CONSERVATION [2017] NZHC 3114 [13 December 2017]

of the Marine Mammals Protection Act 1978 (and as a corollary, would be unlawful without a permit).

[3]      When the matter first came before me as Duty Judge on 8 December 2017, in the misapprehension I was dealing with an application for interim orders, I indicated a half-day hearing was available on 14 December 2017 and directed a telephone conference on 11 December 2017 for confirmation and timetabling.

[4]      In memoranda filed for the telephone conference the respondents brought to my attention the applicant makes no application for interim orders and they strongly resisted a hearing of the substantive proceeding on 14 December 2017.  Instead, they would co-operate towards the first available hearing after 12 February 2018.

[5]      I was not persuaded the plaintiff had made out a case for such urgency that the matter should be set down in the face of the respondents’ claims of prejudice.  I was influenced as well by the fact that the nature of the relief the plaintiff seeks did not require an urgent judgment from the Court.   In other words, even if the plaintiff secured an urgent hearing, if the Judge needed to take time to consider the arguments, and did so, that delay tended to negate whatever benefits accrued from an urgent hearing.

[6]      I declined to set the matter down for a hearing on 14 December 2017.

[7]      On 13 December 2017 Greenpeace filed an application for leave to appeal that “order”.  The grounds of appeal are particularised mainly by reference to the reasons for seeking declaratory relief sought but also because:

(a)      The applicant has deliberately confined the proceeding to a limited factual basis and no further evidence from the respondents is said to be necessary to determine the questions at issue.

(b)The effect of my order is that any declaratory relief will likely come after the survey is complete (or close to its completion) and render nugatory the realistic possibility of effective prospective declaratory

relief in the context of the second respondent’s survey.

(c)      The order is inconsistent with the purpose of the Declaratory Judgments Act 1907 jurisdiction which is designed to provide a speedy and inexpensive method of obtaining a judicial interpretation where the matter in dispute cannot conveniently be brought before the Court in its ordinary jurisdiction and where a declaratory judgment would be appropriate relief.  Greenpeace cites New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd.1

[8]      Greenpeace  acknowledges  the  relief  sought  is  not  to  stop  the  second respondent’s seismic survey but the purpose of the relief, being to obtain judicial determination of the statutory requirements of the Marine Mammals Protection Act

1978 applicable to the survey, determines the legality of the survey.

[9]      I accept the proceeding raises issues of public importance and interest.  But I am not satisfied the applicant has identified an arguable error of fact or law in what is essentially a timetabling or scheduling decision.

[10]     The Minister does not accept that the proceeding can be heard in half a day and that the issue can be determined solely on the basis of an interpretation of the MMIA. Both respondents wish to have the opportunity of adducing evidence to support their intended denial of the effects of the survey on marine mammals pleaded in the statement of claim.  It is said there is likely to be relevant evidence additional to the MMIA that will be of assistance to the Court and there may be disputed facts and possibly other parties likely to be affected by the outcome of the proceeding.  At the very least, counsel for the Minister submits expert evidence will be required to assist the Court in understanding this complex technical report.  Both respondents submit the interests of justice are not served by granting leave to appeal.

[11]     Section  56(3)  of  the  Senior  Courts Act  2016  is  not  intended  to  confer jurisdiction to appeal decisions of the kind in question, a scheduling decision which I

do not accept has the effect of determining or affecting rights or liabilities at issue. To

1      New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd [1976] 1 NZLR 84 (CA) at [85].

the extent rights or liabilities may be affected by the scheduling decision I am inclined to the view they are the rights of the respondents to have a proper opportunity to prepare their opposition to the application for declaratory relief.

[12]     The application for leave to appeal is declined.

Karen Clark J

Solicitors:

LeeSalmonLong, Auckland for Plaintiff