Reversible effects of seabed mining bid ignored, says appeal
By Pattrick Smellie
July 10 (BusinessDesk) - Would-be seabed ironsands miner TransTasman Resources says the rejection of its marine consent application rejected last month "did not meet the requirements of the Exclusive Economic Zone Act and was unjust", in its application to appeal the findings of the Decision-Making Committee (DMC) appointed to hear the application by the Environmental Protection Authority.
TTR and opponents spent two months at hearings earlier this year on its proposal to dredge some 50 million tonnes of ironsands annually, extract 5 million tonnes of iron ore and return the remainder to the seafloor, off the coast of Patea in the South Taranaki Bight. It was the first such application for seabed mining under new legislation governing New Zealand's vast, oceanic EEZ.
In documents lodged at the High Court in Wellington, TTR mounts numerous challenges to the DMC's findings and process ,including the order in which it took expert and non-expert evidence, denying TTR opportunities to cross-examine late witnesses, and failing to seek more information that it said it needed, only to reject the proposal on the grounds of uncertainty.
It had also failed to take into account accepted expert evidence, including that the environmental effects of the mining would be reversed within a decade, and had treated some non-expert evidence as coming from experts.
It had also ignored expert witness advice that it was not entitled to ignore and had run an inquiry "that was driven by process and availability considerations, not a proper evidential process."
"The sequencing of evidence and submissions meant that TTR was unable to identify some matters that required attention in evidence, cross-examination, or conditions until the non-expert evidence was filed and submissions made," TTR's legal counsel, Hugh Rennie QC, says in the application to appeal.
TTR had introduced new objectives relating to concerns over the impact of sand plumes on oceanic primary productivity on the last day of the hearings, in response to late, non-expert evidence on the subject, but the DMC "held there had been no opportunity for it to be given any expert review, a matter which arose from the actions of the DMC, not TTR."
TTR also argues the DMC knew it needed more information, but ultimately did not seek it.
"It was not entitled in law to assume that TTR could not provide that information," the company's submission says. "Nor was it entitled ... to infer that TTR did not have such information but it took such inferences in respect of matters it considered to be pivotal."
It was wrong for the DMC to use timelines in the EEZ Act, which require a decision within nine months of an application being lodged, not to extend its deliberations or to request further information.
The DMC should also have treated TTR's proposals for a staged "adaptive management" approach, rather than finding such a process was not possible, the claim says.
The Environmental Defence Society has said it will be cross-appealing the decision.