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High Court hearing on Trans-Tasman Resources underway

High Court hearing on Trans-Tasman Resources iron sands ruling underway

By Rebecca Howard

April 16 (BusinessDesk) - A four-day hearing kicked off in the Wellington High Court challenging the Environmental Protection Authority-appointed committee’s decision to grant a marine consent to Trans-Tasman Resources’ offshore iron mining project with the first appellant arguing it misunderstood and misapplied the statute.

TTR has sought permission to extract 50 million tonnes of seabed material a year to export up to 5 million tonnes of iron sand per year from the ocean floor in the South Taranaki Bight. It was initially rejected in 2014 when a committee ruled the environmental impacts of the proposal were too difficult to gauge on the evidence available. The company went back to the drawing board and a second hearing was held between February and May last year. Consent was granted last August, under a series of conditions.

Francis Cooke, QC, who represents Maori and fishing interests in the hearing, said the EPA's decision-making committee committed a series of errors and consent should never have been granted.

According to Cooke, among other issues, the committee never identified the statutory requirements it was applying to evaluate the project. He underscored that while people can have personal views about the issue at hand the "members of the DMC have to apply the statute" and it failed to identify the standard by which the application would be judged.

For example, he presented evidence that would indicate the committee was aware the mining project would have adverse effects but said it expects those to be "temporary, albeit of considerable duration." According to Cooke, the DMC "appears to be applying a standard that allows the environment to be harmed, provided it ultimately recovers," but never identified the corresponding standard that was based on.

He also argued that it should have taken into account the prior decision, something he said it failed to so. He said the DMC failed to get baseline information about the environment and said it did not properly address the impact of the project on the coastal marine area, which is outside of the project's direct area but nonetheless is impacted, he said.

The decisions is being appealed by several other applicants, including Kiwis Against Seabed Mining with Greenpeace, and Forest & Bird.

KASM and Greenpeace are appealing on 12 points of law. Among these is the issue of what is called “adaptive management” whereby an activity like seabed mining is allowed to go ahead, adapting the conditions on which it occurs along the way.

Forest & Bird’s legal team will be arguing that the panel misunderstood their obligation to protect the environment, confusing it with an obligation to avoid, remedy, or mitigate adverse effects on the environment.

If the appeal is successful, the court could instruct the committee to reconsider its decision or the decision could be thrown out, which is what KASM is lobbying for, said KASM chair Cindy Baxter.

She noted, however, if the ruling goes against them they would likely be an appeal.

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