30 Sep 2021

Taranaki ironsands mining appeal fails at Supreme Court

2:38 pm on 30 September 2021

Trans-Tasman Resources has lost its Supreme Court bid to overturn a decision preventing it from mining millions of tonnes of ironsands off the coast of South Taranaki.

A map provided by Trans-Tasman Resources showing the area covered by the proposed ironsands project.

A map showing the area covered by the South Taranaki Bight Project. Photo: Trans-Tasman Resources

In a unanimous decision released today, the Supreme Court has upheld previous High Court and Court of Appeal decisions quashing the company's consents.

Trans-Tasman Resources wanted to suck up to 50 million tonnes of sand a year from the seabed to extract vanadium-rich iron ore.

To do this the company required marine consents and marine discharge consents under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the EEZ Act).

It got the go-ahead from the Environmental Protection Agency in 2107, but Kiwis Against Seabed Minining (Kasm), Ngāti Ruanui, Nga Rauru Kītahi, Greenpeace and seven other environmental and fishing groups successfully fought the approval through the High Court and Court of Appeal.

Natalie Coates, legal counsel for Te Kahui O Rauru who appeared for the iwi in both the Court of Appeal and Supreme Court, said it was a precedent-setting decision.

"This is an exciting day for iwi. The Supreme Court decision is precedent setting and will have implications beyond the specific EEZ Act.

"The Court has given strong and clear direction about the central role that Te Tiriti has in our constitution and in the law that will guide how all Treaty clauses in legislation are interpreted in the future. Tikanga was also affirmed as being part of our law."

The company appealed to the Supreme Court in November last year, arguing that the Court of Appeal had given Treaty of Waitangi principles too much weight.

It also claimed the Court of Appeal had leaned too strictly on environmental protection and that assessment of the mining bid must consider economic benefits as well environmental impact.

In its decision the Supreme Court disagreed, falling on the side of environmental protection, in particular as it releated to marine mammals and seabirds.

"Given the uncertainty of information relating to the effect of TTR's activities on these species, the EPA's Decision Making Committee simply could not be satisfied that the conditions it imposed were adequate to protect the environment from pollution."

The Supreme Court also clarified the approach to the Treaty of Waitangi clause in the Exclusive Economic Zone Act, holding that a broad and generous approach was required.

It said the Decision Making Committee of the EPA had to take into account of the effects of TTR's proposed activity on existing principles in a way that recognised the Crown's obligation to give effect to Treaty principles.

"These existing interests include tikanga-based customary rights and interests, including kaitiakitanga ... the Court was also agreed that tikanga as law had to be taken into account by the DMC as 'other applicable law' under the decision-making criteria where its recognition and application is appropriate to the particular circumstances of the application at hand."

The Supreme Court found the DMC had made various errors in relation to these issues.

It referred the matter back to the EPA for reconsideration but did not, as iwi parties along with the Royal Forest and Bird Protection Society of New Zealand wanted, dismiss TTR's application outright.

Parties were invited to seek a direction regarding costs from the High Court.

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