Appeals on points of law in complex iron sand mining decision
Numerous aspects of the split decision to allow seabed mining off the Taranaki coast could potentially be challenged, a planning expert says.
Massey University People, Environment and Planning School Associate Professor Christine Cheyne said the fact the four member decision-making committee was equally divided in their voting indicated the potential testing of the decision on different points of law.
She was speaking after the Environmental Protection Authority approved, with conditions, Trans-Tasman Resources' application to mine an area off the coast of Patea for 35 years.
The decision, released on Thursday, gives TTR permission to dredge up to 50 million tonnes a year of iron sand from a 66 square kilometre area off Patea.
The large number of submitters, around 99 per cent, opposing the applicationwas not enough to lodge an appeal under the terms of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, she said.
"It will need to be on a point of law and there are always areas for interpretation and re-interpretation of law under the Act," Cheyne said.
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"It was a complex case so there is potential for multiple points of law to be challenged."
Cheyne said the split decision was an "interesting development".
"It raises the question why would you have an even number of members on the decision-making committee in such a complex case."
Cheyne said any appeal would be costly and a financial burden on potential appellants.
All appeals against the decision must be made on a point of law.
The EPA committee was required under the Act to base its decision on the best information available.
The Act's purpose is to manage the environment from pollution by regulating against harmful substances being discharged into the sea.
Appeals would be made on the interpretation of the law under the Act.
Kevin Hackwell conservation advisor to environmental lobby group Forest & Bird, said it had yet to decide on whether it would appeal.
"We're looking carefully at appealing but will we need to satisfy ourselves we have a strong case to put forward."
Forest & Bird last year successfully appealed to the Court of Appeal over a High Court decision that allowed 22 hectares of conservation land to be swapped for 170ha of farmland to enable the Ruataniwha Dam in Hawkes Bay to be built.
The conservation group had argued it was wrong to allow the conservation land's specially-protected status to be revoked for commercial development. The appeal was upheld in the Supreme Court in February.
Hackwell said Forest & Bird's any appeal to the High Court on the TTR decision would focus on both the final decision and the process used to reach that decision.
Both aspects will be analysed carefully to see if they can be challenged on points of law, he said.
"We will have a full analysis of the decision and then decide if we have enough for a sound appeal."
The fact that the decision had to be passed by a casting vote from the chairman meant the committee did not have enough information in the application to work with, he said.
Also, the condition imposed by the committee for TTR to have a two-year monitoring programme before it began mining suggested there needed to be more information, he said.
Legislation also stipulated a tight time frame to complete the submission process and make a decision which could be challenged.
When there were significant decisions to be made with huge impacts involved, they should be made properly with enough time to hear all information provided, he said.
"Speedy decision making isn't the best.
"At first glance it appears there are real questions to be asked but whether this amounted enough to make an appeal we don't know," he said.
Hackwell said appeals were costly and legal fees would likely run into "tens of thousands of dollars".
Hackwell criticised the way fighting complex and expensive environmental decisions was left to groups like Forest & Bird and not government departments, such as the Department of Conservation, which had the legislative requirement to protect marine mammals.
The EPA sought advice from DOC through the submission process, including the effects of seabed mining on whales.
Hackwell said DOC had "ducked for cover" on the TTR mining application.
"It is now left up to groups like Forest & Bird, and the community to do the job of DOC, using our own funding and resources.
"We shouldn't have to do this."
The South Taranaki Bight was an exclusive habitat for endangered blue whales, and up to 33 marine mammal species were found in the area.
The absence of DOC in submission hearings had a bearing on the final decision making, Hackwell said.
DOC chose not to submit to the second application because it was satisfied all conservation measures had been met.
Scientists believed the fine sand plume from the mining process would sink to the sea floor faster than first thought, the department said.
All groups have 15 working days from the decision date to lodge an appeal in the High Court.
"The timeframe is tight but we have a very good record with our appeals and we should have a chance at appealing," he said.
What is the Environmental Protection Authority?
EPA is a government agency set up to consider resource management applications for nationally significant infrastructure projects, such as roading and wind farms.
It also regulates new organisms, such as plants, animals, GM organisms, and hazardous substances and chemicals.
It administers the Emissions Trading Scheme, and operates the Emissions Trading Register
It manages environmental impact of specified activities in the Exclusive Economic Zone, including prospecting for petroleum and minerals, seismic surveying and scientific research, and space vehicle launches where material is discarded into the EEZ.
In the last 12 months the authority has granted marine consent applications to OMV New Zealand, Shell Todd Offshore Services and AWE Taranaki to discharge harmful substances offshore from Taranaki.
It turned down an application by Chatham Rock Phosphate to mine phosphate from the Chatham Rise.
- Taranaki Daily News