Taranaki-Whanganui Conservation Board v Environmental Protection Authority
[2018] NZHC 2217
•28 August 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV-2017-485-704
[2018] NZHC 2217
UNDER the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 IN THE MATTER OF
an appeal under s 105
BETWEEN
THE TARANAKI-WHANGANUI CONSERVATION BOARD CLOUDY BAY CLAMS LIMITED FISHERIES INSHORE NZ LIMITED
GREENPEACE OF NEW ZEALAND INC KIWIS AGAINST SEABED MINING INC NEW ZEALAND FEDERATION OF
COMMERCIAL FISHERMEN INC SOUTHERN INSHORE FISHERIES
MANAGEMENT COMPANY LIMITED TALLEY’S GROUP LIMITED
TE OHU KAI MOANA TRUSTEE LIMITED
TE RUNANGA O NGĀTI RUANUI TRUST
THE ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NZ INC
THE TRUSTEES OF TE KĀHUI O RAURU
Appellants
AND
THE ENVIRONMENTAL PROTECTION AUTHORITY
First Respondent
TRANS-TASMAN RESOURCES LIMITED
Second Respondent
Hearing: 16-20 April 2018 Counsel:
J D Gardner-Hopkins for The Taranaki-Whanganui Conservation Board
THE TARANAKI-WHANGANUI CONSERVATION BOARD v THE ENVIRONMENTAL PROTECTION AUTHORITY [2018] NZHC 2217 [28 August 2018]
F M R Cooke QC, R A Makgill, J L Inns and H K Irwin-Easthope
for Cloudy Bay Clams Limited, Fisheries Inshore NZ Limited, NZ Federation of Commercial Fishermen Inc,
Southern Inshore Fisheries Management Company Limited, Talleys Group Limited, Te Ohu Kai Moana Trustee Limited, Te Runanga o Ngāti Ruanui Trust and The Trustees of
Te Kāhui o Rauru
D Salmon, D A C Bullock and D Currie for Greenpeace of NZ Inc and Kiwis Against Seabed Mining Inc
M C Smith, H E McQueen and P D Anderson for Royal Forest and Bird Protection Society of NZ Inc
V Casey QC and C J Haden for The Environmental Protection Authority
J B M Smith QC, M J Slyfield and V N Morrison-Shaw for Trans-Tasman Resources Limited
Judgment:
28 August 2018
JUDGMENT OF CHURCHMAN J
TABLE OF CONTENTS
The consents [4]
Approach to appeals [7]
The application [10]
Issues on appeal [18]
Should the EPA have returned the application as incomplete? [45]
What are the relevant purposes of the EEZ Act? [70]
Legislative history relating to discharges [70]
Purpose [90]
The appellants’ argument [106]
Analysis [117]
Other marine management regimes [122]
Analysis [153]
International law obligations [163]
Section 59(2)(f) – economic benefit [178]
Did the DMC properly assess the effects on existing interests correctly? [192]
Were only physical effects on the existing interests of iwi considered? [195]
Was a cultural impact assessment by tangata whenua necessary? [206]
Did the DMC need to consider claims of customary title under MACA? [229]
What is the relevance of New Zealand’s obligations under UNDRIP? [234]
Was proper regard given to the Treaty of Waitangi? [238] Did the DMC apply the information principles correctly? [244] Did the DMC make “full use of its powers”? [252]
Was the impact assessment adequate? [265]
Did the DMC act on the best information available? [276]
Analysis [297]
Was there a lack of information on the proposal’s impacts? [300] Did the DMC err in failing to consider requiring a bond for performance of conditions? [301] Was the DMC required to apply a precautionary approach? [313] Analysis [331]
Adaptive management approach [347]
What is “adaptive management”? [351]
Was the DMC’s interpretation of what amounted to an adaptive management approach too narrow? [375]
Analysis [397]
Did the DMC observe the principles of natural justice? [406]
Outcome [420]
[1] The large south-westerly swells that roll into the South Taranaki Bight start far away in the Southern Ocean and the waves encountered are driven by winds blowing unhindered across the Tasman Sea. These powerful forces shape a marine environment that is both turbulent and dynamic.
[2] Despite the appearance of vast emptiness, many taonga lie beneath the surface of the waters off the South Taranaki Coast. Those taonga include hydrocarbon deposits which have provided the basis for Taranaki’s oil and gas industry;1 substantial iron sand deposits formed by the erosion of volcanic material from Mt Taranaki and concentrated by sea currents and tides; a habitat for fish exploited by large commercial fishing companies;2 a seafood resource used by tangata whenua and by recreational fishers; and a habitat for marine flora and fauna, ranging from simple bottom dwelling organisms (benthic biota) and phytoplankton, through plants like sponges and seaweed, up to 13 different cetacean species, including internationally endangered blue whale and nationally critical or endangered Southern right whale, killer whale and Maui’s dolphin.
[3] The tangata whenua also see the sea itself (Tangaroa) as a living entity having a mauri or life force that is itself a taonga. They see themselves as the custodians or kaitiaki of that taonga. It is the relative importance that each of the different parties to this case place on these various taonga that has shaped these proceedings.
1 The Kupe, Māori, Tui and Māui installations lie to the north and west of the site.
2 Commercial fishing interests, including those that are appellants, intensively trawl the area.
The consents
[4] The Environmental Protection Authority (EPA), granted Trans-Tasman Resources Limited (TTR) consents to extract and process seabed material containing iron ore and to discharge processed material into the sea.3 The granting of those consents has been challenged.
[5] Seven separate appeals have been lodged by entities who were submitters before the EPA. Those appeals had been consolidated and were heard together. The appellants include:
(a)Iwi: Ngāti Ruanui and Ngā Rauru Kītahi;
(b)Commercial fisheries interests: Cloudy Bay Clams Limited, Fisheries Inshore NZ Limited, NZ Federation of Commercial Fishermen Inc, Southern Inshore Fisheries Management Co Limited, and Talleys Group Limited;
(c)Environmental bodies or groups: The Taranaki-Whanganui Conservation Board, Greenpeace of NZ Inc, Kiwis Against Seabed Mining Inc, and The Royal Forest and Bird Protection Society of NZ Inc; and
(d)Te Ohu Kai Moana Trustee Limited.
[6] Many of the points raised in the appeals overlap. The broad issue for determination on the appeal, however, can be described as being whether the consents granted by the EPA are in accordance with the provisions of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act or the Act) and consistent with legal obligations that the parties contend arise from other sources including:
3 Environmental Protection Authority Trans-Tasman Resources Ltd Marine Consent Decision
(EEZ000011, 3 August 2017) [Decision].
(a)the Resource Management Act 1991 (RMA) and related legislative instruments including the Coastal Marine Policy Statement (CMPS); and
(b)international conventions such as the United Nations Convention on the Law of the Sea (UNCLOS), the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the Treaty of Waitangi, and the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA).
Approach to appeals
[7] Although a number of the submissions are similar (the iwi appellants, the fisheries appellants and Te Ohu Kai Moana are substantially the same), there are a large number of different issues raised across the various appeals. Many of the grounds advanced by the different appellants overlap and a number of similar grounds are expressed in different ways.
[8] The most efficient way of addressing these appeals is on an issue basis rather than addressing each ground of each appeal separately.
[9] I have identified eight separate issues that broadly cover all of the allegations raised by the appellants. These are:
(a)What approach should be taken to identifying whether the issues appealed on amount to questions of law (permitted by s 105 of the EEZ Act) or questions of fact in respect of which no appeal is allowed?
(b)Should the EPA have returned the application as incomplete under s 41 on the basis that it did not contain the information required by s 39?
(c)What are the relevant purposes of the EEZ Act?
(d)Did the Decision-Making Committee (DMC) fail to apply the information principles in the EEZ Act correctly?
(e)Did the DMC properly assess the effects on existing interests?
(f)Was the DMC required to apply a precautionary approach, and did they do so?
(g)Did the DMC adopt a prohibited adaptive management approach to the marine discharge consent?
(h)Did the DMC observe the principles of natural justice?
The application
[10] In August 2016, TTR lodged an application for marine consents and marine discharge consents for various activities associated with the extraction and processing of seabed material containing iron ore. The application related to an area off the South Taranaki Bight some 22 to 36 kilometres offshore and encompassing approximately 66 square kilometres.
[11] The consents granted by the EPA permit TTR to extract up to 50 million tonnes of seabed material per annum, and process that on an Integrated Mining Vessel. Some 10 per cent of the material extracted will be processed into iron ore concentrate. The remaining material is to be returned to the seabed by way of a controlled discharge.
[12] This application was the sequel to an earlier application made by the applicant in November 2013 which was declined by a differently constituted DMC in June 2014.
[13] The applicable law governing the current application is the law in force as at August 2016. This means that the amendments introduced through Part 5 of the Resource Legislation Amendment Act 2017 do not apply.
[14] The area in respect of which the consents were granted is located in the exclusive economic zone. It abuts the Coastal Marine Area (CMA). The location of the site has significant consequences in terms of which legislative framework applies. Activities in the CMA are governed by the RMA. Activities in the EEZ beyond the CMA are governed by the EEZ Act, the Exclusive Economic Zone and Continental
Shelf (Environmental Effects – Discharge and Dumping) Regulations 2015, and by New Zealand’s international obligations.
[15]Section 11 of the EEZ Act provides:
11 International obligations
This Act continues or enables the implementation of New Zealand’s obligations under various international conventions relating to the marine environment, including–
(a)the United Nations Convention on the Law of the Sea 1982;
(b)the Convention on Biological Diversity 1992;
(c)the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL);
(d)the Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matter, 1972 (the London Convention).
[16] UNCLOS qualifies the absolute jurisdiction that New Zealand has over areas beyond its immediate territorial waters. It sets out obligations in relation to protection and preservation of the marine environment,4 the exploitation of natural resources,5 and preventing, reducing and controlling pollution of the marine environment.6
[17] The provisions of the EEZ Act need to be interpreted consistently with the obligations set out in UNCLOS.
Issues on appeal
[18] The appeals in this case are brought under s 105 of the EEZ Act. Such appeals are limited in nature. Section 105(4) provides that, “An appeal lodged under this section may be only on a question of law.”
4 United Nations Convention on the Law of the Sea 1833 UNTS 3 (opened for signature 10 December 1982, entered into force 16 November 1994), Art 192.
5 Article 193.
6 Article 194.
[19] As emphasised by the Supreme Court in Bryson v Three Foot Six Ltd, the scope of such appeals is narrow.7
[20] The limited nature of the available appeal has implications for many of the grounds advanced by the appellants. For example, one of the issues is whether or not the DMC had based its decision on the “best available information” as required by s 61(1)(b) and s 87E(3).8 What constitutes the best available information, is informed by a consideration of cost, effort and time.9 These are issues of fact, not law.
[21] Some of the appellants, in particular the Taranaki Whanganui Conservation Board (the Conservation Board), attempted to portray these issues as mixed questions of fact and law. Often that is not the case and what is really being challenged is findings of fact.
[22] Similarly to appeals from the EPA, appeals from the Environment Court to the High Court are also limited to questions of law.10 The Countdown Properties decision was recently confirmed as the leading authority as to what questions of law are in the context of the RMA.11 Counsel are generally agreed that the Court should adopt the “Countdown approach” in determining what questions of law are.12
[23] The approach adopted by the full High Court in Countdown Properties is that appeals from decisions of the Environment Court should only be allowed if it is considered that the Court:13
·applied a wrong legal test; or
·came to a conclusion without evidence or one to which, on evidence, it could not reasonably have come; or
·took into account matters which it should not have taken into account; or
7 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25]-[26]. See also Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 per Blanchard J at [50].
8 Section 87E was repealed on 1 June 2017 by s 249 of the Resource Legislation Amendment Act 2017 but was in force at the time the application for resource consents was made.
9 Section 61(5).
10 Resource Management Act 1991, s 299.
11 See Transpower New Zealand Ltd v Auckland Council [2017] NZHC 281 at [52].
12 See Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC).
13 At 153.
·failed to take into account matters which it should have taken into account.
[24] The decision to restrict appeals from the EPA to the High Court to questions of law was a deliberate one. There was extensive debate in the Committee of the whole House (where a Supplementary Order Paper to allow full merits appeals to the Environment Court was not agreed to).14
[25] Ms Casey QC, counsel for the EPA, submitted that the limited scope of appeal is an important feature of the statutory regime, forming part of the deliberate balance between the public interest and participation in decisions under the EEZ Act, and the public interest in the efficiency and cost effectiveness of the consenting regime.
[26] Ms Casey also noted that the limited right of appeal reflected the specialist nature of the decisions made under the EEZ Act, and the expertise of the decision- making bodies themselves. I accept these submissions and the further submission that consenting decisions are not inter-parties disputes, and that, in making a decision on a consent application, a DMC is required to make expert assessments and exercise a broad judgement, and balance various public and private interests.
[27] Mr Gardner-Hopkins, for the Conservation Board, referred to the fact that the DMC did not have a member with the expertise or experience of being a Judge or lawyer, and also noted that the DMC was evenly split in its decision with the “majority” being achieved by the use of the Chair’s casting vote. He also submitted that “… the members of the minority were those who had the greater scientific and technical expertise in comparison to the majority.”
[28] The expertise or otherwise of the members of the DMC is not a point of law upon which an appeal can be based. Neither is the fact that the various members of the DMC have different backgrounds and expertise. The issue is whether or not the DMC made a mistake of law. That is not something to be ascertained by looking at the qualifications or experience of the members of the DMC, but by looking at what they actually said.
14 (21 August 2012 and 22 August 2012) 683 NZPD 4592 and 4546; Supplementary Order Paper 2012 (95) Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill 2012 (321-3).
[29] Neither is there any significance in the fact that this decision was one produced by the Chair’s casting vote. In the absence of an error of law, that fact is irrelevant, as is the fact that the decision in relation to these consents differed from a prior DMC decision in relation to an earlier application.
[30] The DMC was not obliged to follow the prior DMC decision. Even the Environment Court, in its de novo jurisdiction, is not obliged to do that. In Guardians of Paku Bay Association Inc v Waikato Regional Council, Wylie J said:15
It has traditionally been accepted that, while the Environment Court is entitled to take into account the decisions and dicta of other courts which have considered the same or similar matters at an earlier stage, it is not bound by its previous decisions, and is free to consider each case on its merits. Its failure to take into account previous decisions is not an error of law.
[31] Some of the appellants essentially invited this Court to prefer the findings of fact made by the minority of the DMC. That is not an available approach unless it can be demonstrated that the majority’s findings of fact were ones which, on the evidence, could not reasonably have been reached or unless it took into account matters which it should not, or failed to take into account matters which it should have.
[32] The Court of Appeal recently emphasised this approach in Equus Trust v Christchurch City Council where it said:16
Where an appeal is limited to a question of law which concerns the interpretation of legislation, it is not sufficient for an applicant simply to point to one interpretation being perhaps preferable to another. The Supreme Court made this abundantly clear in Vodafone New Zealand Ltd v Telecom New Zealand when endorsing the observation of Lord Mustill in R v Monopolies and Mergers Commission ex parte South Yorkshire Transport Ltd. Where a legislative instrument genuinely makes available a range of meanings, the Court is entitled to substitute its own opinion for that of the original decision maker “only if the decision is so aberrant that it cannot be classed as rational”. These principles apply with particular force when the decision maker is a specialist tribunal.
[33] Another leading case on what amounts to a question of law is the decision of the Court of Appeal in Centrepoint Community Growth Trust v Takapuna City Council.17 This case was an appeal bought under s 162H of the Town and Country
15 Guardians of Paku Bay Association v Waikato Regional Council [2012] 1 NZLR 271 at [61(f)].
16 Equus Trust v Christchurch City Council [2017] NZCA 200 at [7] (citations omitted).
17 Centrepoint Community Growth Trust v Takapuna City Council [1985] 1 NZLR 702 (CA).
Planning Act 1977 which was replaced by the RMA. The Court referred to and followed a decision of the NSW Supreme Court in Australian Gaslight Co v Valuer-
General.18
[34] Mr J Smith QC, counsel for TTR, acknowledged that there was a slightly divergent approach between the decisions of the Court of Appeal in Centrepoint and the NSW Supreme Court in Australian Gaslight, with the former describing the first step (ascertainment of meaning of statutory words) as a question of law and the latter describing it as a question of fact. However, he pointed to the fact that the Court in Centrepoint acknowledged the decision of Brutus v Cozens19 as authority for the proposition that where the interpretation involves “ordinary English words” the first steps “may be categorised as involving fact alone”.20
[35] I accept the submissions of TTR that in most cases, absent special reason to the contrary, ordinary or common meaning (and usage) prevails and, in effect, statutory meaning is usually resolved as a question of fact.21
[36] I will therefore approach cautiously the claims by the appellants that are based on a sufficiency of evidence.22
[37] A number of the appellants have submitted that the EPA either considered irrelevant matters or failed to consider relevant matters. Such a submission cannot be a backdoor way to effectively achieve merits review.
[38] Any failure to take into account a relevant matter must be a complete failure rather than the weight that the DMC gave to the particular matter. It also must be a failure that is material to the decision.
[39] A number of the appellants referred to tests and concepts drawn from the RMA. An example is the submissions of Mr Salmon, counsel for Kiwis Against Seabed
18 Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126.
19 Brutus v Cozens [1973] AC 854 (HL).
20 Centrepoint, above n 17, at 706.
21 See Oliver Jones (ed) Bennion on Statutory Interpretation (6th ed, LexisNexis, London, 2013) at 1095.
22 In accordance with Marris v Ministry of Works and Development [1987] 1 NZLR 125 (HC) at 127;
Hutchison Bros Ltd v Auckland City Council (1988) 13 NZTPA 39 (HC).
Mining (KASM) and Greenpeace. Mr Salmon identifies what he described as the “environmental bottom lines” where he says:
The definition of sustainable management in s 5(2) of the RMA therefore contemplates a bottom line of environmental protection, as well as use and development.
[40]He then goes on to submit:
The same observations must apply in respect of “sustainable management” under s 10(2) of the [EEZ Act], which also requires protection of natural resources and its use and development.
[41] Counsel also developed an argument based on the proposition that the “precautionary principle” was inherent in the RMA’s provisions, and that the DMC was therefore obliged to have regard to it, particularly in relation to the New Zealand Coastal Policy Statement (NZCPS).
[42] As counsel for EPA noted, the legislative history of the EEZ Act confirms that there was a deliberate decision to create a separate and different regime from that governed by the RMA. Counsel refers to a statement recorded in the Regulatory Impact Statement to the EEZ Bill which said:23
It would not be possible to extend the RMA in its current form without significant changes to the governance arrangements (for example to the devolved nature of planning and decision-making). It is also inconsistent with New Zealand’s rights and obligations under international law. The RMA is complex and has a large volume of case law behind it. Adapting the RMA to cover the EEZ and ECS is likely to result in unintended consequences as it was designed for application in areas over which New Zealand has full sovereignty.
[43]Counsel for the EPA concluded:
RMA concepts such as “environmental bottom lines”, ss 6-8 of the RMA, and the RMA hierarchy of planning documents [as discussed in King Salmon [2014] NZLR 593] are not to be grafted onto the EEZ Act regime: the statute is fully prescriptive and is to be read on its own terms.
[44] I accept that there is a danger in assuming (as many of the submissions on behalf of the appellants do) that concepts developed under the RMA (such as
23 Ministry for the Environment Regulatory impact Statement: Exclusive Economic Zone and Extended Continental Shelf Environmental Effects Legislation (20 April 2011) at 13.
environmental bottom lines) should automatically be transferable to a consideration of the provisions of the EEZ Act.
Should the EPA have returned the application as incomplete?
[45] Under s 38 of the EEZ Act, any person may apply to the EPA for a marine consent to undertake a discretionary activity. The application must:
(a)be made in the prescribed form;
(b)fully describe the proposal; and
(c)include an impact assessment prepared in accordance with s 39.
[46] Section 87B of the Act provides for marine discharge consent applications with much the same requirements as for a marine consent, the only difference being that the impact assessment was also to be in accordance with any regulations.
[47] In terms of the requirements for an impact assessment, s 39 provides that it must:
(a)describe the activity for which consent is sought; and
(b)describe the current state of the area where it is proposed that the activity will be undertaken and the environment surrounding that area; and
(c)identify the effects of the activity on the environment and existing interests (including cumulative effects and effects that may occur in New Zealand or in the sea above or beyond the Continental Shelf beyond the outer limits of the Exclusive Economic Zone; and
(d)identify persons whose existing interests are likely to be adversely affected by the activity; and
(e)describe any consultation undertaken with persons described in paragraph (d) and specify those who have given written approval to the activity; and
(f)include copies of any written approvals to the activity; and
(g)specify any possible alternative locations for, or methods for undertaking, the activity that may avoid, remedy, or mitigate any adverse effects; and
(h)specify the measures that the applicant intends to take to avoid, remedy, or mitigate the adverse effects identified.
[48] Any application for a marine consent and/or a marine discharge consent may be returned as incomplete under s 41 if the EPA decides the included impact assessment does not comply with s 39. The EPA has 10 working days from the date on which it receives the application to make this determination.24
[49] TTR’s application was supported by a 320-page impact assessment, along with 520 pages of appendices and 42 technical reports commissioned from third parties.
[50] Several of the appellants have submitted that the DMC should have returned the report as incomplete and that they made an error of law in not doing so.
[51] On 6 September 2016, the EPA issued a memorandum recording its reasons for not returning TTR’s application as incomplete under s 41 of the EEZ Act. It noted (at
[85] and [87]) that the applications had been made in the prescribed form, containing full descriptions of the proposal in accordance with the EEZ Act’s requirements. As to the impact assessment, the DMC concluded that it complied with the s 39 requirement as it was in:
24 EEZ Act, s 41(3).
(a)such detail as corresponded to the scale and significance of the effects that the activity may have on the environment and existing interests; and
(b)sufficient detail to enable the EPA and persons whose existing interests are or may be affected to understand the nature of the activity and its effects on the environment and existing interests.
[52] However, the DMC identified 15 information gaps such as the final particle size range of the discharged material compared to the material extracted, the bioaccumulation of metals other than mercury within marine biota, the effects on Māori who had statutory acknowledgement areas near the project area, and when monitoring was to commence.25
[53]However, it noted that:26
[A] lthough some gaps in the information may remain, we consider that the information provided regarding the effects of the activity on the environment and existing interests does meet the requirements of making a reasonable effort to identify the effects of the activity.
[54] The Māori and fisheries appellants, in their submissions, noted that throughout the public submissions and hearing process, the DMC “identified areas where further information was required” and commissioned further reports. They argued that the application filed by TTR was therefore deficient at the outset and that it was not legitimate to seek to address these deficiencies during the hearing process.
[55] Mr Salmon, counsel for KASM and Greenpeace, took a slightly different approach and criticised the fact that the DMC allowed TTR to call fresh evidence late in the hearing. He submitted that the content of this late evidence included information that had been identified by the first DMC as being absent from the application in the 2014 decision, and also identified by the submitters as being missing and raised by the submitters in questioning during the hearing process.
25 As to the statutory acknowledgement areas, see Sch 4 of the Ngāti Ruanui Claims Settlement Act 2003, and ss 40-47 of the Ngā Rauru Kītahi Claims Settlement Act 2005.
26 Environmental Protection Authority, above n 3, at [75].
[56] It was submitted that late evidence created an unfairness to the other parties who relied on the application being complete subject to any unforeseen issues.
[57] Mr Salmon asserted, “There comes a time in a hearing where it is too late to accept fresh evidence without prejudicing parties to the hearing”. However, as I have noted at [26], a consenting decision of this nature is not a normal inter partes dispute. There are inquisitorial aspects of the EPA’s function. If a party believes they have been prejudiced by the late calling for, or acceptance of, evidence, then their remedy should be to seek leave to file evidence in reply or to seek an adjournment. That did not occur. Given the inquisitorial nature of the DMC’s function, it did not err in law by calling further evidence, even late in the hearing.
[58] Mr M Smith, counsel for Forest and Bird, submitted that the EPA erred in law in:
… not returning the application as incomplete when the impact assessment did not describe the current state of the area and the effects of the proposed activity in the required level of detail …
[59] Although the Conservation Board did not expressly submit that the DMC should have refused the application, that was implicit in its submissions. It referred to the decision of the High Court in R J Davidson Family Trust v Marlborough District Council which dealt with the equivalent provision in the RMA to s 62(2) of the EEZ Act.27 That case held that, under s 104(6) of the RMA there was an onus on the applicant for a resource consent to supply enough relevant information to the consent authority to enable it to determine the application. In that case, the High Court upheld the Environment Court’s approach where it had said:28
In particular, the decision-maker must be able to reasonably assess a credible region of probabilities of the relevant adverse effect even if only qualitatively.
However, in some situations there may be inadequate information to even assess the likelihood of the effects of a stressor, and it is then that section 104(6) RMA may come into play. Clearly the power to decline on the basis of inadequate information should be exercised reasonably and proportionately in all the circumstances of the case.
27 R J Davidson Family Trust v Marlborough District Council [2017] NZHC 52, [2017] NZRMA 227.
28 R J Davidson Family Trust v Marlborough District Council [2016] NZEnvC 81 at [25]-[26].
[60] The reasons why the EPA did not return the application as incomplete under s 41 are recorded in a memorandum. The relevant paragraphs in the memorandum state:29
[88] We have assessed TTRL’s IA against the requirements of section 39 of the EEZ Act. For the discharges of sediment for which marine discharge consent is sought, we have assessed TTRL’s IA against the requirements of Regulation 35 of the DD Regs 2015.
[89] We have concluded that TTRL’s IA complies with these requirements because the information provided in the IA is in:
(a)such detail as corresponds to the scale and significance of the effects that the activity may have on the environment and existing interests; (section 39(2)(a) EEZ Act); and
(b)sufficient detail to enable the EPA and persons whose existing interests are or may be affected to understand the nature of the activity and its effects on the environment and existing interests (section 39(2)(b) EEZ Act).
[90]We are also satisfied that TTRL has made a reasonable effort to:
(a)identify the effects of the activity on the environment and existing interests (including cumulative effects and effects that may occur in NZ or in the sea above of beyond the continental shelf beyond the outer limits of the EEZ) (section 39(1)(c) EEZ Act); and
(b)identify the persons whose existing interests are likely to be adversely affected by the activity (section 39(1)(d) EEZ Act).
[61]In relation to the 15 “information gaps”, the memorandum concluded:30
We are of the view the nature of the missing information is not of such significance or importance as to be considered “essential” information in terms of the completeness consideration under section 39 of the EEZ Act. The DMC may request this information from TTRL by way of a further information request under section 42 of the EEZ Act. Further details of the information which we recommend the DMC could request from TTRL will be included in the Key Issues Report and the DMC will then need to decide if it needs this information, or any other information for that matter, before a decision on the application can be made.
[62] TTR’s response to the submission that the application should have been returned because it was not complete was to say, “A challenge to the completeness decision is not a question of law which is challengeable on appeal.”
29 Environmental Protection Authority Completeness Assessment Memorandum (6 September 2016).
30 At [91].
[63] This submission was supported by a reference to s 41(5) which provides a review or objection right only to the applicant, not to would be or actual submitters. Attention was also drawn to the fact that the word “may” appears in s 41(1), giving the EPA a discretion as to whether or not to return an application not containing all the required information.
[64] TTR also referred to the evidence of an independent witness for the EPA (Donald Allan Robertson) who suggested that:
[T]he scale and extent of preparation for the particular environmental impacts of this TTR mining process … far exceeds anything I have seen in relation to comparable environmental assessments of the effects of bottom trawl fishing in the NZ Territorial Seas and Exclusive Economic Zone in the last 45 years.
[65] TTR also submitted that the s 41 process was merely a screening process designed to stop incomplete applications going further so as to avoid the time and cost of a full consideration of such applications.
[66] Ms Casey, for the EPA, submitted that a decision not to return an application as incomplete under s 41 is a separate decision from the consent decision under ss 62 and 87F and forms no part of the decision under appeal. She noted that a decision under s 41 has its own separate appeal regime in the Act but it is the applicant that has a right of objection to a decision to return an application as incomplete, and that there is no direct right of appeal, and no right of objection or appeal, by a potential submitter.
[67] I accept that a decision as to whether or not to return an application as incomplete under s 41 is a discretionary procedural decision to be taken by the EPA. It is a separate and discrete decision to the ultimate decision on the consent itself. Potential submitters do not have a right of objection or appeal in relation to such a decision. The DMC made a reasoned and considered decision that there was no basis for returning the application.
[68] The High Court in Greenpeace of New Zealand Inc v Environmental Protection Authority, which was an application for judicial review, confirmed the nature of the EPA’s evaluation under s 41:31
EPA’s role under s 41 does not involve any assessment of the merits of the content of the impact assessment. Its role is limited to assessing whether the application contains information about the required matters. The purpose of that preliminary evaluation of the content is to ensure that, when … the next stage of public notification and consideration of the application by EPA is reached, the public and EPA will have sufficient information to ensure meaningful participation in the hearing and evaluation processes.
[69] The decision of the EPA not to return the application cannot be described as unreasonable and, even if it were able to be challenged in this appeal, there would be no basis for overturning it.
What are the relevant purposes of the EEZ Act?
Legislative history relating to discharges
[70] The EEZ Act is a relatively recent piece of legislation but even in its short life it has been amended in aspects that are relevant to this case. When the EEZ Bill was introduced on 24 August 2011, marine discharging and dumping were, at that time, regulated by a separate regime under the Maritime Transport Act 1994 and the Maritime Protection Rules.
[71] At the time the EEZ Bill was introduced, the controlled discharge of sediments or tailings from a seabed mining activity was not included in the Maritime Protection Rules and such sediments or tailings did not fall within the definition in the rules of “harmful substance”.
[72] Early cases under the EEZ Act (for example the first TTR consent application and the Chatham Rock Phosphate application) addressed the effects of sedimentary plumes created by undersea mining as part of the marine consent for the mining activity.
31 Greenpeace of New Zealand Inc v Environmental Protection Authority [2013] NZHC 3482, [2014] NZRMA 112 at [28].
[73] The initial Regulatory Impact Statement accompanying the EEZ Bill anticipated that the regulation of discharge and dumping activities that were associated with consents for marine activity should be transferred from the Maritime Transport Act 1994 (MTA) to the EEZ Act.32
[74] The justification for such transfer appears to have been the economic and efficient processing of consents and the avoidance of having the EPA assess the environmental effects associated with consent activity and Maritime New Zealand assess the environmental effects of discharge and dumping.33
[75] However, the plans to include regulation of discharge and dumping in the original EEZ Bill did not proceed.
[76] The EEZ Bill had its Third Reading on 30 August 2012 and came into effect in June 2013. While the EEZ Bill was still proceeding through the House, the Marine Legislation Bill was introduced. It proposed a variety of amendments to the MTA and included among them was the proposal to transfer the discharge and dumping regulatory powers to the EEZ Act to enable “discharges and dumping to be assessed within the same consenting regime as other activities relating to the wider operation”.34
[77] The Regulatory Impact Statement confirmed that the purpose of the transfer was to increase efficiency and certainty for resource users and applicants. There was no obvious intention to alter the barriers to the exploitation of natural resources.
[78] The disposal or storage of waste or other matter directly arising from or related to a mining activity was excluded from the definition of “dumping” in the Marine Legislation Bill. The scope of “discharges” to be covered by the Act was to be determined by the definition of “harmful substance” which was to be set by regulation.
32 Ministry for the Environment Regulatory Impact Statement: Transfer of Discharge and Dumping Regulatory Functions from Maritime New Zealand to the Environmental Protection Authority (14 September 2011).
33 At 5-7.
34 Marine Legislation Bill 58-1, Explanatory Note. See also Ministry for the Environment, above n 32.
[79] The distinction between dumping and discharges is important. It is clear that the proposed provisions of the Bill in relation to dumping were to ensure that New Zealand acted consistently with MARPOL and the London Convention. Neither of these international instruments were relevant to the discharge of mining sediments into the marine environment. The London Protocol 1996 (which was agreed to modernise and eventually replace the Convention) states:35
The disposal or storage of wastes or other matter directly arising from, or related to the exploration, exploitation and associated off-shore processing of seabed mineral resources is not covered by the provisions of this Protocol.
[80] The Bill effectively excluded an adaptive management approach for both discharges and dumping. Although neither the London Convention nor associated protocol prohibited adaptive management in relation to dumping, the Departmental report to the Select Committee, indicates that the reason adaptive management was prohibited was to “… ensure New Zealand continues to act consistently” with MARPOL and the London Protocol.36
[81] As the International Instruments related to dumping rather than discharge, it was not obvious that, at the time the Bill was introduced, the discharge of sediments from marine mining would be caught by this provision. That is because the definition of “harmful substance” had not yet been set by regulation, and sediments from seabed mining had not been included as “harmful substances” under the prior regime under the MTA.
[82] The Marine Legislation Bill was itself split, with the relevant part becoming the EEZ Amendment Bill which received the royal assent on 22 October 2013.
[83] The first proposal to include sediments from seabed mining in the definition of “harmful substances” came in a Ministry for the Environment discussion document in August 2013.37
35 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (the London Protocol), Art 1(4)(3).
36 Report of the Ministry of Transport and the Ministry for the Environment Marine Legislation Bill 2012 at 111.
37 Ministry for the Environment Activity classifications under the EEZ Act: A discussion document on the regulation of exploratory drilling, discharges of harmful substances and dumping of waste in the Exclusive Economic Zone and Continental Shelf (Wellington, August 2013).
[84] There is no indication in any of the explanatory material that a purpose of including mining sediments within the definition of harmful substances was to alter the standard of environmental protection available in respect of such discharges.
[85] The new regulations (and the EEZ Amendment Bill) came into effect on 31 October 2015.
[86] The EEZ Act was amended as part of the Resource Legislation Amendment Act 2017. This moved the dumping and discharge consent provisions into Subpart 2 of Part 3 but did not substantively alter them.
[87]Section 4 of the EEZ Act defines discharge as being:
Discharge
(a)includes any release, disposal, spilling, leaking, pumping, emitting, or emptying; but
(b)does not include dumping.
[88] Dumping is also defined and it is specified that it does not include the disposal or storage of waste or other matter directly arising from, or related to, a mining activity.38
[89] I have set out the background to the structure of the EEZ in some detail as it is relevant to an understanding of how adaptive management ended up as a technique that was not available in relation to marine discharges.
Purpose
[90]Section 10 of the EEZ sets out the purpose of the Act:
(1)The purpose of this Act is–
(a)to promote the sustainable management of the natural resources of the exclusive economic zone and the continental shelf; and
(b)in relation to the exclusive economic zone, the continental shelf, and the waters above the continental shelf beyond the
38 EEZ Act, s 4.
outer limits of the exclusive economic zone, to protect the environment from pollution by regulating or prohibiting the discharge of harmful substances and the dumping or incineration of waste or other matter.
(2) In this Act, sustainable management means managing the use, development, and protection of natural resources in a way, or at a rate, that enables people to provide for the economic well-being while–
(a)sustaining the potential of natural resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
(b)safeguarding the life-supporting capacity of the environment; and
(c)avoiding, remedying, or mitigating any adverse effects of activities on the environment.
(3)In order to achieve the purpose, decision-makers must–
(a)take into account decision-making criteria specified in relation to particular decisions; and
(b)apply the information principles to the development of regulations and the consideration for applications for marine consent.
[91]The relevant regulations define harmful substance as:39
4 Meaning of harmful substance
For the purposes of the Act, unless the context otherwise requires, harmful substance means any of the following:
(a)a substance that is ecotoxic to aquatic organisms and is hazardous for the purposes of the Hazardous Substances (Minimum Degrees of Hazard) Notice 2001:
(b)oil:
(c)garbage:
(d)sediments from mining activities other than petroleum extraction.
[92]The EEZ Act therefore has two purposes:
(a)to promote the sustainable management of natural resources; and
39 Exclusive Economic Zone and Continental Shelf (Environmental Effects – Discharge and Dumping) Regulations 2015, reg 4.
(b)to protect the environment from pollution by regulating or prohibiting the discharge of harmful substances.
[93] The use of the alternatives “regulating or prohibiting” in s 10(1)(b), indicate that the Act envisages circumstances where the discharge of a substance classified as being “harmful” need not be prohibited but can appropriately be regulated.
[94] It is also clear that the purpose is not to exclude the extraction of some mineral resources, but requires the use and development of such natural resources while safeguarding the life-supporting capacity of the environment and avoiding, remedying or mitigating any adverse effect of activities on the environment.40
[95] In relation to the use of the word “while” in s 10(2), the decision of the Supreme Court in Environmental Defence Society v New Zealand King Salmon Co Ltd (King Salmon) is of assistance.41 It indicates that the word “while” in this context, means “at the same time as”.
[96] There is a significant difference between the definition of sustainable management in s 10(2) of the EEZ Act, and the definition of the same words in s 5(2) of the RMA. This is because the word “environment” used in s 10 is defined differently:42
environment means the natural environment, including ecosystems and their constituent parts and all natural resources, of–
(a)New Zealand:
(b)the exclusive economic zone:
(c)the continental shelf:
(d)the waters beyond the exclusive economic zone and above and beyond the continental shelf.
40 See EEZ Act, s 10(2).
41 Environmental Defence Society v New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 [King Salmon] at [24(d)].
42 EEZ Act, s 4.
[97]The equivalent definition in the RMA is much broader and includes:43
(a)ecosystems and their constituent parts, including people and communities; and
(b)all natural and physical resources; and
(c)amenity values; and
(d)the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) or which are affected by those matters.
[98] The difference in the definitions means the decisions on sustainable management of natural resources made under the RMA may not always be relevant.
[99] Perhaps unsurprisingly, the appellants focus on the purpose of protection from pollution purpose set out in s 10(1)(b). Mr Gardner-Hopkins goes so far as to submit that this purpose “… must over-ride the Act’s sustainable management purpose if necessary”.
[100] Mr Cooke QC, for the iwi and fisheries interests, asserts: “So the discharge of such harmful substances is directly identified by s 10 as something to be prohibited as part of the purposes of the Act.”
[101] That statement goes too far. Indeed, in the same paragraph, Mr Cooke effectively concedes this by acknowledging:
What the provisions specify is that such discharge of harmful substances is a form of marine environment pollution that is controlled by the Act. This does not mean that TTL’s application is automatically non-compliant, however. That is because:
… The purpose of s 10(1)(b) includes “regulating” as well as “prohibiting” such discharges; and
… The additional purpose of sustainable management in s 10(1)(a), as defined in s 10(2), also needs to be addressed.
[102] I do not accept the submission that the protection from pollution purpose overrides the sustainable management of natural resources purpose. There is no absolute prohibition on the discharge of a harmful substance. Section 10 clearly
43 RMA, s 2.
anticipates that there will be cases where this is appropriate, otherwise the reference to regulating such a discharge would be meaningless.
[103] The definition of sustainable management also incorporates the management of natural resources in a way that enables people to provide for their economic wellbeing. The exclusion of minerals from the obligation of “sustaining the potential of natural resources” clearly envisages that, in appropriate circumstances, non- renewable minerals may be extracted and discharges regulated provided that it is done in a way that avoids, remedies or mitigates any adverse effects of such activities on the environment.
[104] Section 10 contains, in subs (3), a provision not found in the corresponding section of the RMA. Subsection (3) specifies what a decision-maker must do in order to achieve the purposes set out in subs (1) and (2). The two obligations are to:
(a)take into account decision-making criteria specified in relation to particular decisions; and
(b)apply the information principles to the development of regulations and the consideration of applications for marine consent.
[105] Whether or not the DMC has discharged its obligations in respect of s 10(3) is dealt with subsequently at [276]-[312].
The appellants’ argument
[106] Mr Cooke, for the iwi and fisheries interests, argued that the DMC did not follow the framework established by s 10. His specific complaint was that the DMC did not apply the information principle set out in s 10(3)(b). He said that the DMC was obliged to favour caution and environmental protection when the information available was uncertain or inadequate and had not done so. He said that the information before the DMC was indirect and incomplete, and criticised the use of sampling and modelling to establish possible effects, particularly in relation to the sediment plume.
[107] He argued that the Impact Assessment required by s 39 was obliged to describe both the current state of the area and the environment close to the area, and the effects of the activity on the environment and existing interests, and asserted that this obligation could not be discharged by a sampling/modelling exercise.
[108] Mr Cooke also submitted that, although the DMC found that the proposed activities would have adverse effects on the environment and existing interests, the DMC did not consider whether the activities could nevertheless be allowed by applying the standard set by the Act for granting consent. It was claimed that no tests/standard was applied. This last point was developed as follows:
At no point do the majority properly address the assessed implications of the activities to determine whether they are justified in accordance with the “test” established by the Act. Indeed no such “test” is ever articulated. The majority do no more than identify a series of factors that they say they take into account, but without explaining how, or what ultimate standard is applied to decide whether the application should be granted.
[109] It was submitted that compliance with s 10 would have required the DMC to assess the economic benefits of the application, together with the effects on the environment and existing interests, and it was claimed that this was also not done.
[110] It was submitted that, instead, the DMC had adopted “an overall balancing approach” of the type held by the Supreme Court to be inappropriate.44
[111] Mr M Smith, for the Royal Forest and Bird Protection Society, submitted that the DMC did not directly address “protecting the environment from pollution” and wrongly conflated it with avoiding, remedying, or mitigating adverse effects.
[112] TTR’s response to the reliance by the appellants on the decision of the Supreme Court in King Salmon in support of the claim that the EEZ imposed an environmental bottom line which had not been considered by the DMC was to submit:
The King Salmon decision is easily distinguishable. It was a plan change case, which turned on a specific RMA requirement that lower-order Plans are to “give effect to” the New Zealand Coastal Policy Statement (NZCPS), and
44 See above n 41, [106]-[153]; and Sustain Our Sounds Inc v The New Zealand King Salmon Co Ltd
[2014] NZSC 40, [2014] 1 NZLR 673, at [70]-[74].
specific NZCPS policies that required certain effects to be “avoided”. It has little relevance to a marine consent application under different legislation.
[113] A different approach to compliance with the purposes of the EEZ Act was taken by Mr Salmon, counsel for KASM and Greenpeace. He noted that pursuant to s 59(2)(a), when considering an application for a marine consent, the DMC was obliged to take into account effects on the environment which were defined as including “the economic benefit to New Zealand of allowing the application”.45 He conceded that the DMC had acknowledged that it was required to take such economic benefits into account but criticised their conclusion that a benefit/cost analysis was not required. He submitted that such a consideration was necessary, as was a consideration of environmental, social and cultural costs.
[114] He submitted that an assessment of the “economic benefit to New Zealand” necessarily involved a consideration of both costs and benefits, and that if the economic cost of allowing the application outweighed the economic benefits, there would be no economic benefit to New Zealand from allowing the application. He also argued that the DMC was wrong not to take into account potential economic benefits from other activities that might be precluded or harmed by the activity for which consent was granted on the basis that they were not “imminent”.
[115] TTR’s response was to assert that the Act sought to enable economic use to be made of the EEZ, provided the environment was protected and adverse effects were managed.
[116] In response to the submission that the DMC did not identify or apply any tests/standard to be met in relation to the implementation of s 10, TTR pointed out that the DMC considered in extensive detail the extent of any adverse effects on the environment, and the extent to which such effects could be avoided, remedied or mitigated. Mr J Smith noted that the DMC specifically identified the analysis in Chapter 7 as having been undertaken for the purposes of s 10, and in particular to comply with the requirements under s 10(3).
45 EEZ Act, s 59(2)(f).
Analysis
[117] The DMC was clearly aware of the EEZ Act’s statutory purpose. They set s 10 out in full on pages xi and xii, and acknowledged:46
Section 10 requires that the environment is protected from pollution and dumping of harmful substances and waste such as the residual material that will be returned to the seabed after processing and the extraction of iron ore.
[118]Immediately after that they said:47
The use of the resource must be regulated and controlled in such a way that meets the Act’s purpose of sustainable management. We are obliged to identify and to manage effects on the environment to achieve that purpose.
[119] At [117] of the Majority Decision, the DMC specifically acknowledged it was required to give effect to the EEZ and needed to consider whether the application met the purpose of the Act and the framework for assessing that, as set out in ss 59 and 87D of the Act. There is no doubt that the DMC correctly identified the purposes of the Act and the relevant criteria to apply in assessing whether the purposes were met.
[120]The DMC’s reasoning as to how the purposes of the Act would be met was:48
(a)the impact of most effects will be felt at a localised scale, for example the mining operation would not have significant effects on fish at a population level, although there would be impacts at particular locations within the CMA and the EEZ;
(b)the expert evidence established that the impacts on kaimoana, including shellfish, would be negligible;
(c)the discharge of residual material to the seabed would create a plume of suspended material and the effects of that plume would be felt within the CMA to the South East of the mining site itself;
46 Decision, Summary of Decision at [12].
47 At [13].
48 At [15]-[25].
(d)potential effects of the plume and the deposition of suspended sediment had been assessed by the applicant using modelling of the plume itself;
(e)they imposed conditions that they believed would limit the intensity of the plume and its effects on the environment;
(f)they acknowledged that the mining site itself would incur “catastrophic destruction of existing benthos on the seabed on the mining site itself”, but they accepted the evidence that the benthos would recolonise the area and it would recover to perform a similar ecological function;
(g)noise generated by the mining operation was an adverse effect but this was addressed by the imposition of noise threshold limits;
(h)although the effects on the environment would, in many cases, be of considerable duration, most of them would come to an end when the extraction of the material from the seabed ceased.
[121] I deal separately at [265]-[275]; [339]-[343]; [178]-[191] with issues such as the adequacy of the impact assessment, the reliance on sampling and modelling the effects on existing interests, whether a cost/benefit analysis was required in relation to assessing economic benefits, and whether there was an inappropriate conflation of protection of the environment with avoiding, remedying or mitigating adverse effects, but, subject to my findings on these specific topics, it is clear that the DMC correctly identified the statutory purposes and, particularly in Chapter 7, explained how they had taken the Act’s purposes into account in reaching their decision to grant the consents.
Other marine management regimes
[122] A number of the appellants advanced an argument based on s 59(2)(h) of the EEZ Act which obliges a consent authority, in assessing the effects on the environment, to consider “the nature and effect of marine management regimes”.
[123]Mr Salmon submitted that the DMC had misdirected itself in holding:
We have assessed effects within the [coastal marine area] in the same way as if the consent were applied for in that area … [but that] … we have not regarded the NZCPS as in any way a replacement for the EEZ Act … our duty and powers lie only under the Act, and there is no relevant topic covered by the NZCPS which is also not able to be considered in the same way under the EEZ Act.
[124] Mr Salmon argued that the DMC had misinterpreted the nature and effect of the RMA and NZCPS with respect to the coastal marine area and this amounted to an error of law. He acknowledged that the EEZ Act did not treat the effects of an activity in the coastal marine area in the same way that the RMA and NZCPS did. He went so far as to submit that the scheme of the EEZ Act was such that it required “the DMC to give effect, or at least significant weight, to the substantive requirements of the RMA and NZCPS when considering cross-boundary effects in the CMA.” He urged upon the Court the view of the DMC minority which, unlike the majority, had concluded that “significant weight must be given to such prohibitions where discharge activities occur in close proximity to the CMA and the effects predominantly occur in the CMA …”.
[125] Mr Salmon noted that the EEZ Act contemplated applications relating to cross- boundary activities (that is, activities regulated by both the EEZ Act and the RMA) being considered both by the EPA and the relevant consent authority.49 He then said:
The EPA/DMC could have decided not to continue with the hearing until matters within the CMA were addressed by a resource consent application, or at an earlier stage returned the application as incomplete.
[126] He submitted, “The extensive provisions concerning joint applications under the RMA and the EEZ/CS Act underline the intention of the legislature to harmonise the two regimes.”
[127] He then suggests, “Given the cross-boundary effects of the activity, the EPA ought to have required a joint process, and erred in failing to do so.”
49 EEZ Act, s 91.
[128] This submission appears to overlook the fact, that although there were some effects (particularly the sediment plume) in the CMA, the activity for which the consents were required was located exclusively beyond the CMA. It therefore did not fall within the category of “cross-boundary activity” regulated by ss 90-100 of the EEZ Act. There was no error of law in the DMC not holding a joint hearing and the EEZ Act does not require the DMC to give effect to either the RMA or NZCPS as would be required if consent for an activity taking place in the CMA was being sought.
[129] Mr Gardner-Hopkins, for the Conservation Board, took a slightly different approach. He said that the requirements of s 59(2)(h) was that the DMC was required to analyse the provisions of the NZCPS or “seek to understand” the nature and effect of the NZCPS. He criticised the DMC’s consideration of the NZCPS at [1019] as being “cursory” and claimed that the DMC regarded its obligations under s 59(2)(h) as being to “be aware of” relevant issues and to “avoid conflict with” other marine management regimes.
[130] He submitted that the obligation to take into account “the nature and effect of other marine management regimes” meant more than being aware of the issues and avoiding conflict. He submitted, “In terms of the RMA, section 59(2)(h) required the DMC to fully understand the nature and effect of the NZCPS …”.
[131] He expanded on this view by submitting, “This required the DMC to consider, if the activity had required a consent under the RMA, what the likely outcome would be.”
[132] Mr Cooke, for the fisheries and iwi interests, made a parallel submission. He acknowledged that, in [1010] the DMC confirmed they had assessed effects with the CMA in the same way as if the consent were applied for in that area but stated:
It was inadequate to just address the topics under the requirements relating to the EEZ area, and not to separately address the different, and more specific, requirements within the CMA arising under the NZCPS.
[133]He stated:
The Supreme Court found in EDS v King Salmon that the NZCPS created environmental bottom lines that had to be applied, and could not be satisfied
by more general lines of inquiry, or balancing the relevant considerations under the RMA.
[134] However, this submission fails to recognise that what the Supreme Court was considering in King Salmon, was the RMA itself. The application was for consents within the CMA and therefore both the RMA and the NZCPS were controlling.
[135] Because the present consent application related to activities in an area beyond the CMA, it overstates the position to imply that the NZCPS creates environmental bottom lines that must be applied.
[136] The appellants’ real challenge was to the finding of the DMC at [1023] where it said:
The NZCPS is a national policy document, and therefore differs from the EEZ Act in the detail of direction that it provides. That detail provided us with a useful framework that gave additional context to our deliberations. That said, we have not regarded the NZCPS as in any way a replacement for the EEZ Act. We are clear that our duty and powers lie only under the Act, and there is no relevant topic covered by the NZPS [sic] which is also not able to be considered in some way under the EEZ Act. We were mindful of avoiding duplication related to the Act’s requirement for caution, as opposed to the NZCPS direction on the “precautionary principle”.
[137] The DMC have therefore set out the reasons why they chose not to undertake a detailed analysis of the NZCPS of the type that the appellants have submitted was necessary.
[138] In submitting that a greater depth of analysis and exposition of reasons was required by s 59(2)(h), the appellants are overstating the obligation.
[139]As Baragwanath J said in the case of Murphy v Rodney District Council:50
… the duty to give reasons requires the decision maker to outline the intellectual route taken, which provides some protection against error. The reasons may be succinct; in some cases they will be evident without express reference.
[140] Ms Casey, for the EPA, pointed out that the provisions of the EEZ Act which address what should occur where an activity may overlap between the territory
50 Murphy v Rodney District Council [2004] 3 NZLR 421 at [25].
regulated by the EEZ Act and that of other consenting regimes, were primarily procedural. She noted that the process did not establish the DMC as a decision-maker under the RMA, nor give it any role in determining whether an applicant for a marine consent is also required to seek resource consent under the RMA, nor empower it to predict the likely outcome of an RMA application process.
[141] She submitted that the process regulating joint applications for cross-boundary activities does not provide for alignment of policies, planning approaches or decision- making criteria between the two regimes. She submitted that the only substantive (as opposed to procedural) direction in the EEZ Act is s 59(2)(h) where the DMC is directed to “take into account” the nature and effect of other marine management regimes.
[142] She submitted that marine management regimes were defined in s 7 and covered a wide range of legislative regimes including the Fisheries Act, the Marine Reserves Act, the Submarine Cables and Pipelines Protection Act, and the RMA, and noted that the NZCPS was not specifically referred to and that the coastal marine provisions of the RMA had no special statutory weighting compared to the other marine management regimes listed there.
[143] She concluded that there was no statutory basis for the submission that the DMC was obliged to assess the application in accordance with the NZCPS and/or give direct effect to the NZCPS in its decision.
[144] Mr J Smith, for TTR, submitted that the DMC was not required to apply the provisions of the RMA relating to the grant of discharge permits in the CMA. He acknowledged that under s 59(2)(h), the DMC was obliged to take other marine management regimes into account and said that it did so. He pointed out that the DMC acknowledged that some effects of the discharge would occur in the CMA and noted that the DMC had imposed conditions relating to the management of those effects both within the EEZ and the CMA.
[145] Section 107 of the RMA prohibits the grant of a discharge consent within the CMA if, after reasonable mixing, the contaminant or water the discharge would be
likely to give rise to a conspicuous change in colour or visual clarity of the water, or significant adverse effect on the aquatic life within the CMA. As to this section, Mr J Smith submitted that the RMA applied only to the outer edge of the territorial sea
– being 12 nautical miles offshore, and did not apply in the EEZ.51 He noted that
therefore, even if the discharge were to result in a conspicuous change in colour or visual clarity of water, or significant adverse effects on aquatic life within the CMA, s 107 of the RMA could not prevent the DMC granting consent to the discharge within the EEZ. He also noted that the DMC had no authority to consider and determine whether any RMA consents were required, or to make determinations in relation to whether any RMA tests were met. He submitted that, while consents were required at the point of a discharge, they were not required once the material had left the effective control of the discharger.52
[146]On the NZCPS, Mr J Smith’s submission was:
However, the requirement (under s 59(h)) to take into account, “the nature and effect of other marine management regimes”, does not bind the decision- maker to follow the NZCPS, and nor does it require a detailed evaluation against the NZCPS.
[147] He submitted that EEZ activities are not required to “give effect to” RMA instruments and that all that was required is that the NZCPS was taken into account.
[148] He submitted that the real issue in this case was not whether the DMC took the NZCPS into account, but that the appellants were unhappy with the weight applied to it. He noted that the issue of weight was not a question of law.
[149] The DMC addressed its obligations under s 59 in Chapter 7, in particular at [934] and [935]. It expressly acknowledged that it was obliged to take into account effects that extended beyond the boundaries of the EEZ. At [935], it said of s 59(2):
This section of the Act is highly relevant to our assessment of the effects, especially in respect of the sediment plume. The plume will extend into the coastal marine area (CMA) which is subject to the Resource Management Act. In considering “effects”, we have applied the definition in section 6 of the Act and considered potential effects of low probability but high potential impact.
51 RMA, s 2; and Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977, s 3.
52 Relying on Re Contact Energy Ltd [2009] NZRMA 97.
[150] The minority took a different approach to the assessment of effects within the CMA and the regard that should be given to the NZCPS. They said at [43]:
In our view, given the proximity of the activity to the CMA and the fact that the effects of the sediment plume predominantly occur in the CMA, the objectives and policies of the NZCPS should be given significant weight.
[151] They were also of the view that s 107 of the RMA effectively created an environmental bottom line which must not be crossed by allowing activities with such environmental effects to occur in the CMA. They said at [45]:
We consider significant weight must be given to such prohibitions where discharge activities occur in close proximity to the CMA and the effects predominantly occur in the CMA.
[152] The obligation in s 59(2) on the DMC was to “take into account” other marine management regimes. The DMC expressly acknowledged that obligation.53 It explained why it regarded the RMA as applying to the CMA but not beyond, and said that it had considered the effects within the CMA as if they were effects under the EEZ.54
Analysis
[153] The obligation to take something into account, is something different to the obligation “to apply”.
[154] Some 40 years ago, in a criminal case, Somers J expressed the view that there was a difference between the words “shall have regard to” and “shall take into account”.55
[155] More recently, the Supreme Court in King Salmon, in the context of interpreting s 8 of the RMA, considered that the words “take into account” imposed a different and lesser standard than the words “have particular regard to” in s 7.56
53 Decision at [1001] and [1003].
54 Decision at ss 24.11.2 and 24.11.3, pp 208-212.
55 R v CD [1976] 1 NZLR 436 at 437, line 6, applied also in Te Runanga o Raukawa Inc v The Treaty of Waitangi Fisheries Commission HC Wellington CP 322/96, 7 August 1997, per Gendall J.
56 King Salmon, above n 41, at [27].
[156] The Court also held that neither concept was as strong as the obligation in s 6 that decision-makers “shall recognise and provide for” matters of national importance.
[157]This approach was consistent with that taken by the Environment Court in
Minister of Conservation v Southland District Council where the Court said:57
…the duty to take into account the principles of the Treaty does not necessarily prevail over the duties to have regard to other contents of Part II of the Act. All relevant matters have to be identified and weighed so that a balanced judgment can be made for achieving the statutory purpose of promoting sustainable management of natural and physical resources as defined.
[158] In a more recent case, Brown J discussed the earlier cases and expressed the view that the phrases “shall have regard to” and “take into account” could be regarded as synonymous.58 He said:59
In my view, the expression “to take into account” is susceptible of different shades of meaning. I consider that the two phrases can be viewed as synonymous if the phrase “to take into account” is used in the sense referred to by Lord Hewart CJ in Metropolitan Water Board v Assessment Committee of the Metropolitan Borough of St Marylebone “of paying attention to a matter in the course of an intellectual process”. The key point is that the decision- maker is free to attribute such weight as it thinks fit to the specified matter but can ultimately choose to reject the matter.
[159] I accept and adopt that reasoning. Brown J also noted that the phrase “shall have particular regard to” was a stronger direction than merely “to have regard to”.60
[160] For the purposes of s 59(2)(h) of the EEZ Act, my conclusion is that the obligation to take into account the nature and effect of other marine management regimes was not an obligation to implement or give effect to those regimes, but to pay attention to those regimes and to weigh the nature and effect of them in addressing any effects on the environment or existing interests of allowing the activities for which consent was sought.
57 Minister of Conservation v Southland District Council NZEnvC Auckland A39/01, 19 April 2001 at [108].
58 New Zealand Transport Agency v Architectural Centre Inc [2015] NZHC 1991, [2015] NZRMA 375.
59 At [63] (citations omitted).
60 At [64].
[161] Although the appellants urge upon the Court the approach taken by the minority to the marine management regimes, particularly the NZCPS and s 107 of the RMA, the real difference between the approach of the majority and the minority is the weight which they gave to other marine management regimes.
[162] In circumstances where the DMC clearly considered (and to that extent took into account) both the RMA and NZCPS, but differed from the minority in the weight that they applied to these regimes, it cannot be said that they made an error of law.
International law obligations
[163]Section 11 of the EEZ Act provides:
This Act continues or enables the implementation of New Zealand’s obligations under various international conventions relating to the marine environment, including–
(a)the United Nations Convention on the Law of the Sea 1982;
(b)the Convention on Biological Diversity 1982;
(c)the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL);
(d)the Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matter, 1972 (the London Convention).
[164] Section 59(2)(l) requires a consent authority to take into account “any other applicable law”.
[165] In relation to the EEZ Act, Mr Salmon submitted, “the Act exists because of international law. The continental shelf and the exclusive economic zone, and New Zealand’s authority therein, are entirely products of international law/”
[166] Mr Salmon then submitted that the DMC had failed to consider New Zealand’s international obligations and that amounted to an error of law.
[167] Mr Salmon also referred to s 11 in the context of the obligation on the DMC to apply the precautionary principle. That topic is dealt with subsequently at [313]-[346].
[168] After referring to s 11, Mr Cooke set out four articles from the United Nations Convention on the Law of the Sea (UNCLOS). These were:
(a)Article 55 (which defined the Exclusive Economic Zone as an area beyond and adjacent to the territorial sea under which the rights and jurisdictions of the coast State and the rights and freedoms of other States are governed by this Convention);
(b)Article 192 (which imposes general obligations on States to protect and preserve the marine environment);
(c)Article 193 (which records that States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment); and
(d)Article 194 (which obliges States to take “all measures consistent with the Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities …”).
[169] Mr Cooke did not go as far as Mr Salmon as to the asserted significance of the international conventions referred to in s 11 but said, “They have a relevant interpretive influence on the EPA’s application of the provisions that regulate when particular activities, and especially marine discharge activities in the EEZ, will be allowed.”
[170] The effect of international obligations on New Zealand legislation and the differing approaches that Parliament can take to it were discussed by McGrath J in Helu v Immigration and Protection Tribunal. He said:61
[143] Parliament takes differing approaches to the implementation of international obligations. It sometimes gives them effect by incorporating their exact terms into New Zealand law. At other times, it enacts legislation,
61 Helu v Immigration and Protection Tribunal [2016] 1 NZLR 298 (citations omitted).
with the purpose of giving effect to such obligations, using language which differs from the terms of substance of the international text. In such cases, the legislative purpose is that decision-makers will apply the New Zealand statute rather than the international text. Resort may still be had to the international instrument to clarify the meaning of the statute under the long-established presumption of statutory interpretation that so far as its wording permits, legislation should be read in a manner consistent with New Zealand’s international obligations. But the international text may not be used to contradict or avoid applying the terms of the domestic legislation.
[144] … [If] Parliament has provided that a decision-maker is to have regard to specific considerations drawn from international obligations, the legislation must be applied in its terms, although they may be clarified by reference to the international instrument.
[171] The particular way that Parliament has determined how New Zealand’s relevant international obligations will be applied in relation to marine activity and discharge consents is to refer to them in s 11 and indicate that compliance with the Act is the way that the legislature has decided to discharge New Zealand’s obligations under the various international conventions. None of the international conventions are incorporated directly into New Zealand’s domestic law.
[372] Ms Casey correctly noted, in her submissions, that most of the caselaw has addressed the issue of whether an adaptive management approach is appropriate rather than focusing on a definition of the term. She drew the Court’s attention to the fact that the EEZ Bill, as originally introduced, contained a definition of adaptive management in s 4, but that the Bill was amended to introduce what is now ss 63(2)(b) and 64. Section 64 was not drafted to be a definition as, at the time the amendment containing what was to become s 64 was introduced, the definition sat in s 4.
[373] Ms Casey’s submission was that s 64, “… was intended to provide an expansive permission to the EPA to set effective consent conditions.” At the time of the report back from the Committee of the whole House on 22 August 2012, the definition in s 4 had been changed to refer to what is now s 64, presumably on the basis that a separate definition was no longer necessary. Unfortunately, that has resulted in the Act containing no definition of adaptive management but only two examples illustrative of what the concept includes.
[374] The absence of a particular definition of adaptive management assumed much greater significance upon the subsequent amendment incorporating into the definition of harmful substance the discharge of the residue from undersea mining. It appears that the possibility that this might subsequently occur had not been adverted to by the legislature when they removed the original definition from the Bill.
Was the DMC’s interpretation of what amounted to an adaptive management approach too narrow?
[375] The DMC were alive to the issues raised by the prohibition of the use of an adaptive management approach in relation to a discharge and the lack of a statutory definition of adaptive management.111
[376] The DMC issued a number of minutes seeking submissions from the parties on the concept of “adaptive management approach”.112 They also obtained a detailed opinion from counsel assisting the decision-making Committee. An EPA expert, Dr Robert Lieffering, also addressed this question and provided an opinion concluding that the conditions proposed by TTR, at the time, did not amount to adaptive management.
[377] Both the opinion of counsel assisting and of Dr Lieffering supported a narrow interpretation of s 64(4) and, in particular, a conclusion that a necessary constituent of an adaptive management approach was an approach which, through conditions, provided that an appropriate response to the activity’s effects, following ongoing assessment, was that the consented activity would be discontinued altogether.113 This opinion, which is reflected in the DMC’s decision, is at the heart of the contention between the parties in this case.
[378] The DMC imposed 109 separate conditions to the grant of the consent. Between them, the appellants challenged almost a third of those conditions as amounting to, or contributing to, an adaptive management approach. Each of the appellants challenged different conditions although there was some overlap. The main types of conditions being challenged can be summarised as being:
(a)those relating to the two-year Pre-Commencement Monitoring of some 16 different matters;114
111 EEZ Act, s 87F(4).
112 Minutes 17, 28, and 34.
113 Dr Phil Mitchell, an expert for TTR, gave evidence to the effect that, in all the cases he was aware of where adaptive management had been required, staging and the prospect of shutting down the operation were fundamental to the consents being granted.
114 Conditions 48-51.
(b)the condition which provided that, no later than five years following the completion of all seabed material extraction within 2km of the location where the extraction first occurred, the consent holder was required to demonstrate that recovery of the macroinfauna benthic community at that location had occurred;115
(c)the condition that stipulated that, in the event that monitoring of Suspended Sediment Concentration (SSC) limits show that the limits had been exceeded, or that the significance of change in relation to SSC was more than 10 per cent, “then extraction activities shall cease until the Consent Holder can demonstrate compliance with those conditions, to the satisfaction of the EPA”; and
(d)the various conditions which required an operational response from the Consent Holder as a result of information obtained from monitoring.116
[379] Broadly, such conditions require the Consent Holder to prepare plans setting out indicators of adverse effects revealed by monitoring or identifying potential operational responses to such adverse effects.
[380] In the decision itself, the DMC identified why it had imposed the various conditions complained about by the appellants, and why it thought they did not amount to an adaptive management approach.
[381] Key to the DMC’s reasoning is their acceptance of the advice they had received that an adaptive management approach was one which could result in a permanent cessation of consented activities as a result of the obtaining of new information about effects.
[382] In Chapter 25.2, headed “Operational Response Conditions” at [1054] of the Decision, the DMC stated, “There will be a range of circumstances in which the Consent Holder will need to put day to day operations on hold for a period of time.”
115 Condition 8.
116 For example, Conditions 55g, 61, 66, 67, 68, 69 and 70.
[383]At [1055], it said:
The condition proffered by the applicant dealing with benthic recovery required them to cease operations until recovery is back on track. Dr Lieffering said that “I think it’s an environmental bottom line. It’s a compliance matter. It’s not an adaptive management, as I understand it.”
[384] And in [1056] in relation to condition 8, they said, “We agree with Dr Lieffering that this condition is unlikely to lead to a permanent cessation in the mining activity.”
[385] In response to the claims of the appellants that the DMC had in fact adopted an adaptive management approach, Mr Smith submitted that monitoring of effects was a common feature of all but the most simple consents. He submitted that while it is also always present in an adaptive management approach, it cannot have been Parliament’s intention to prohibit monitoring conditions from being applied to marine discharge consents merely because monitoring could contribute to adaptive management.
[386] He noted that, s 76(1)(c) permitted the EPA to review the duration of a resource consent and the conditions imposed to deal with adverse effects that were unanticipated when the consent was granted, or were of a scale or intensity that was not anticipated when the consent was granted.
[387] He noted that under s 81(3), the EPA may cancel a consent where a review initiated under s 76(1) has indicated that the activity authorised by the consent has significant adverse effects on the environment or existing interests.
[388] However, this submission is not entirely apposite to the types of conditions imposed in the present case. These conditions do not simply relate to unanticipated developments (which is what s 76(1)(c) is restricted to). The need for them arises from the fact that, because of a lack of certainty about what could be described as the environmental bottom line, the DMC is not able to accurately predict what the effects will be, so it cannot be said with any certainty that particular effects are “unanticipated”.
[389] Mr Smith submitted that because what he described as the “orthodox tools” of monitoring and reporting had not been excluded by the statute, an adaptive management approach must mean an approach that achieves something different from such standard management tools. I do not accept this submission.
[390] Imposing conditions such as reporting and monitoring, of itself, will not amount to an adaptive management approach. Adaptive management is a tool to be implemented in circumstances where a resource consent would not otherwise be granted because of inadequate or uncertain information. If the tools such as monitoring and reporting are used as part of a regime which is designed to address the fact that, at the time the consent is granted, there is inadequate information about the receiving environment, or the potential effects, then they can be part of an adaptive management approach or contribute to such an approach.
[391]Mr Smith submitted that:
The only feature of the scenario as described in s 64(2)(a) that is materially different from standard monitoring, reporting, compliance or review conditions, is that they make provision for the authorised activity to cease altogether, or for some new limit to be applied to the continuation of the activity, without relying on the exercise of the Act’s review processes. Those then, are the defining elements of an “adaptive management approach”.
[392] This submission overlooks a further example of such an approach given in s 64(2)(b) which refers to “any other approach that allows an activity to be undertaken so that its effects can be assessed, and the activity discontinued, or continued with or without amendment, on the basis of those effects.” (emphasis added).
[393] Addressing the argument that what had been imposed was a staged activity,117 and that was a constituent component of an adaptive management approach, Mr Smith submitted that Pre-Commencement Monitoring and the sand mining were not the same activity. He further submitted that, “None of the Pre-Commencement Monitoring conditions allow the sand mining to occur on a small scale or for a short period.” This latter submission addresses the example of adaptive management approach given in s 64(2)(a).
117 Referring to s 64(3) and (4).
[394] However, the thrust of the appellants’ arguments was not that the approach taken by the DMC fell within the example given in s 64(2)(a), but within s 64(2)(b).
[395] Mr Smith refers to s 20 and subpart (2) of Part 2 of the EEZ Act as supporting his submission that the monitoring preceding the sand mining was different to the activity of the sand mining and discharge of sediments itself. There is nothing in either s 20 or subpart (2) of Part 2 of the Act that would support such a contention. The relevant consent applied for was a discharge consent. The set of conditions imposed by the DMC, at least in relation to the two-year pre-commencement period, can be regarded as stages of the discharge consent. The reference in s 64(3) to activities being undertaken in stages with a requirement for regular monitoring and reporting before the next stage of the activity may be undertaken supports an interpretation that the conditions imposed amount to an adaptive management approach.
[396] Mr Smith alternatively argued that, even if the pre-commencement monitoring and mining could be regarded as one aggregated activity, the pre-commencement monitoring would still not constitute a staging approach because it did not provide for the mining to not commence based on the monitoring data. This proposition is based on the assumption that, in order for an adaptive management approach to exist, there must be the possibility of the activity being discontinued. However, as indicated above, this ignores the last phrase in s 64(2)(b) referring to the activity continuing with or without amendment on the basis of the effects revealed by the monitoring.
Analysis
[397] In determining the meaning of an adaptive management approach in the EEZ Act, the starting point is to consider the words used in s 64 in light of the purpose of the Act. The Act, of course, has two purposes, namely, the promotion of the sustainable management of the natural resources of the exclusive economic zone and continental shelf, and to protect the environment from pollution by regulating or prohibiting the discharge of harmful substances. Those two purposes sit uneasily one with the other.
[398] TTR, in its submissions, emphasised the purpose of promoting sustainable management of the natural resources and the appellants emphasised the purpose of
protecting the environment from pollution by regulating or prohibiting the discharge of harmful substances. Both purposes are of equal value and neither can be ignored.
[399] The critical features of the regime established or contributed to by the conditions discussed above are that the conditions provide for:
(a)the gathering of baseline information, then the monitoring of the effects of the activities on the environment;
(b)the making of further formal decisions in stages, with the first stage being the period of two years prior to mining commencing, the second stage involving the first five years of operation, and the final stage being the balance of the life of the consents. In relation to condition 5, a potential outcome is that “extraction activities shall cease until the Consent Holder can demonstrate compliance with those conditions, to the satisfaction of the EPA”. To that extent, this condition would fall within even the narrow definition of adaptive management approach adopted by the DMC, and the other conditions fall within the second concept set out in s 64(2)(b) in that, depending on the results of the monitoring, the activity may be continued with or without amendment on the basis of the effects revealed by the monitoring;
(c)thresholds being set to trigger remedial action, and decisions must be made at each stage by the EPA and technical experts to allow the activities to continue, or be modified; and
(d)the consenting activities must either cease or be modified if the information gathered demonstrates that environmental standards are not sustained.
[400] A broad reading of the examples given in s 62(2)(b) is justified because it is consistent with the purpose of environmental protection and the statutory obligation to favour caution.
[401] What distinguishes the monitoring and reporting conditions in the present case from “normal monitoring conditions” is that, it is not just monitoring to ensure compliance with environmental standards, it is monitoring to establish what the environmental baselines are, because of uncertainty or inadequate information coupled with a potential modification or cessation of the activity, depending upon the circumstances revealed by the information.
[402] I accept the submission of Mr M Smith, for Forest and Bird, that “… the key to adaptive management is that it involves allowing an activity to be carried out so that its effects can be monitored and assessed and the activity modified or discontinued accordingly”.
[403] While the Supreme Court in Sustain Our Sounds did not purport to define the concept of adaptive management, they described the indicia of the concept as recognised in the New Zealand and overseas caselaw, and in the International Union for Conservation of Nature Guidelines.118
[404] Here, the conditions imposed by the DMC and discussed above, either constitute or contribute to an adaptive management approach and have been used as a tool for managing uncertainty. Although such an approach is permitted, and indeed very sensible, in relation to activities taking place in the marine environment covered by the RMA and NZCPS, it is simply not available (in relation to the discharge consent) in an area governed by the EEZ Act.
[405] Even if the activities were to take place in an area governed by the RMA, there is doubt as to whether the adaptive management approach in this case would be valid because one of the prerequisites for using an adaptive management approach is to have sufficient baseline information so that appropriate conditions can be drafted. There must be real doubt that this is the case here.
118 Discussed at [358] above.
Did the DMC observe the principles of natural justice?
[406] A number of the appellants phrased their criticisms of decisions made by the DMC as to the conduct of the hearing as breaches of the principles of natural justice. KASM and Greenpeace, in particular, submitted that s 27(1) of the NZ Bill of Rights Act 1990 (NZBORA) had been breached. The particular breaches referred to were:
(a)calling for fresh evidence late in the hearing;
(b)a wrong approach to evidence from the first hearing; and
(c)failure to provide Decision-Making Committee procedures to the applicants.
[407]I have dealt with (a) and (c) previously, finding no error of law.
[408] It was alleged that the majority took into account evidence from the prior hearing despite stating:119
We considered only the evidence and information put before us. We did not evaluate the quality of the evidence put before the other DMC in respect of the earlier application, nor did we critique the decision of that earlier DMC. The two applications are different and we were obliged to deal with the current application as a de novo hearing. We have granted consent based on the evidence put in front of us.
[409] Mr Salmon gave only one example in support of his claim that the DMC had taken into account evidence that had “not been introduced in evidence before it”. This was set out as an extract from [498] of the decision where the DMC had said:
Dr Childerhouse told us that expert conferencing during the previous application had included a review of international literature, including Department of Conservation regulations and the Southall study, which he considers is the benchmark study for acoustic impacts on marine mammals.
[410] Mr Salmon says that the DMC took this evidence into account in deriving conditions to address noise effects on marine mammals. He says that the DMC was wrong to consider evidence from one participant in the earlier expert conference
119 Decision at [116].
without considering the report from the expert conference, and questioning other participants to that conference on that evidence.
[411] This complaint is misconceived. Dr Childerhouse, during the course of his evidence in this DMC hearing, referred to the fact that during the prior hearing, the experts had reviewed international literature. There was nothing inappropriate in him doing that and the DMC did not rely on what had happened at the earlier hearing as a basis for this part of their decision.
[412] The issue of the literature, international and otherwise, about acoustic impacts on marine mammals, was extensively traversed by all of the experts who gave evidence on this topic. Indeed, Mr Salmon omits to set out the balance of [498] which records the discussions between the experts in this case, including the discussion about the Southall study. The passage omitted reads:
The experts also had direct discussions with international experts, including from the USA. He noted that the NOAA interim threshold for behavioural disturbance from continuous noise is 120 dB, and is the same level as described by Southall et al.
[413]The DMC did not depart from the approach it had outlined at [116].
[414] Even if there had been some inconsistency, given the extensive evidence from the various experts on local and international standards and studies on acoustic impacts on marine mammals, the effect of any error would not have been material.
[415] Mr Cooke also criticised the statement of the DMC in [116]. However, his attack was on the basis that, although the DMC was not bound by its previous decision, and no question of res judicata or issue estoppel arose, the DMC should not lightly have taken an approach inconsistent with that taken by the previous DMC. He then set out [116] asserting that it meant that the problems identified by the earlier DMC were not addressed at all, and that no consideration was given to whether the decisions were consistent.
[416] Mr Cooke submitted that the prior DMC had held that there was insufficient baseline information to grant the application, even with adaptive management and said:
It was necessary, therefore, for the DMC to consider the application by virtue of the deficiencies identified by the earlier decision in order to reach a decision that was not inconsistent with its earlier decision.
[417]He supported that submission by referring to the DMC decision which said:120
We considered whether the concept of an existing environmental or activities “baselines” are relevant. We decided they were not. We considered whether precedent had any value in our deliberations. We determined that there was little of relevance in prior experience or case law to draw on for this application.
[418] Given the DMC’s conclusion that the concept of an existing environmental baseline was not relevant, it is hardly surprising that they did not examine the prior DMC’s conclusion to the contrary. As the DMC noted, the prior application was not exactly the same as the current application on the basis of the evidence placed before it.
[419] This was a new application where some of the evidence was different. The Act had also been amended in significant respects since the earlier DMC decision. In those circumstances, the DMC did not make an error of law in failing to give weight to the prior DMC decision.
Outcome
[420] The narrow 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. The interpretation adopted is inconsistent with the purpose of the Act in s 10(1)(b) of protecting the environment from pollution by regulating or prohibiting the discharge of harmful substances. It was also inconsistent with the obligation set out in s 61(2) 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.
[421] The appeal is allowed and the decision of the DMC is quashed. The matter is referred back to the DMC for reconsideration, applying the correct legal test in relation to the concept of adaptive management approach.
120 At [1042].
[422] I invite the parties to agree costs but in the absence of agreement, the appellants shall have 15 working days within which to file submissions, and the respondents 15 working days thereafter to reply.
Churchman J
Solicitors:
Duncan Cotterill (Nelson) for Taranaki-Whanganui Conservation Board Dawson and Associates Ltd for Fisheries Interests
Oceanlaw New Zealand (Nelson) for Ngāti Ruanui
Kahui Legal (Wellington) for Te Kaahui O Rauru and To Ohu Kai Moana Lee Salmon Long for Kiwis Against Seabed Mining and Greenpeace Atkins Holm Majurey Ltd for Trans-Tasman Resources Ltd
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