Shifting Sands: EEZ mining consent declined

In mid-June, a Decision-making Committee appointed for the EPA released its decision regarding Trans-Tasman Resources Limited’s consent applications for activities in New Zealand’s Exclusive Economic Zone. These applications were the first to be considered and determined under the EEZ Act.[1] Other applications, separately lodged by OMV New Zealand Limited and Chatham Rock Phosphate Limited are also now progressing through the EEZ Act processes.

TTR sought approval for activities associated with the excavation of iron sand from the EEZ seabed in the South Taranaki Bight. The activities were proposed over a 65.76 hectare area, located between 22 and 36 kilometres off the coast. It was proposed to excavate up to 50 million tonnes per year of seabed material for processing for iron sand, on a floating processing, storage and offloading vessel. The majority of the excavated material (with iron sand extracted) would be returned to the seabed via a controlled discharge, which was likely to result in a significant plume. The mining activity was anticipated to occur over a 20 year period, with various areas of the seabed being worked over systematically.

The Committee refused TTR’s applications. In doing so it determined that overall, the applications did not satisfy the purpose of the EEZ Act. That conclusion was reached because based on the evidence presented, the Committee was not satisfied that the life-supporting capacity of the environment would be safeguarded or that the adverse effects of the proposal could be avoided, remedied or mitigated. Based on the evidence presented, the Committee had significant concerns regarding uncertainty as to the project’s potential adverse effects (and benefits). These concerns were evident in a number of different effects being considered – including primary productivity and benthic effects, and effects on existing iwi and fishing interests. The Committee also had concerns regarding uncertainty with respect to the project’s anticipated economic benefits to New Zealand.[2] Beyond tax and royalty payments, it was unsure of the extent of economic benefits that would be realised.

Given its uncertainty as to the project’s potential effects, the Committee was required by the legislation to then consider whether the adaptive management approach proposed by TTR could still enable the activity to be undertaken (section 61(3)). On the last day of the hearing the applicant proposed an extensive and “detailed suite of conditions that included a ‘risk based tiered adaptive management approach’”.

Notwithstanding that, the Committee considered that it did not have the degree of confidence regarding the project’s potential effects that it required to be able to grant the applications.

In respect of adaptive management, the Committee also considered the Supreme Court’s King Salmon[3] decision. The Committee’s main concern remained that it did not have sufficient evidence on project’s potential effects, or baseline monitoring information from TTR. The Committee quoted the Supreme Court’s decision as support for it being unable to adopt an adaptive management approach in the circumstances.[4]

For applicants, the EPA’s TTR decision is a clear signal to err on the side of caution as to the level of information required to secure marine consents. The Committee noted that realistically there is no time to properly “fill” information gaps or address potential uncertainties once the application is lodged and proceeds to hearing. The adequacy of information collected and provided in support of a marine consent application must be carefully considered and determined by an applicant before it is lodged with the EPA. The decision will likely also encourage submitters to continue challenging such applications on the basis of uncertainty and lack of information regarding a proposal’s potential adverse effects.

 


[1] Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.

[2] EEZ Act s 59(2)(f), which requires the EPA to take into account “the economic benefit to New Zealand of allowing the application”.

[3] Sustain our Sounds Incorporated v New Zealand King Salmon Company Ltd [2014] NZSC 40.

[4] Decision, para 805 (quoting Sustain our Sounds Incorporated v New Zealand King Salmon Company Ltd [2014] NZSC 40, para [125].

Posted on April 10, 2015 and filed under Resource Consents.