New Zealand Law Society – Auckland Branch Council Elections

Thanks to all the Auckland Branch members who supported my election to the New Zealand Law Society (NZLS) – Auckland Branch Council. I look forward to working with the other Council members over the coming term and the Auckland Young Lawyers Committee.

The following is an interview with the NZLS Auckland Branch, as its newest member.

Robert has recently been elected a council member of Auckland Branch of the New Zealand Law Society. We talk to Robert about his career in environmental law.

“You have recently been elected as a new council member of the NZLS Auckland Branch. Congratulations. You are also a member of the NZLS Environmental Law Committee, which makes submissions on proposed changes to environmental and resource management legislation. Can you tell us more about the Environmental Law Committee’s recent work and contributions?”

Read the full interview here.

Elections, Shipwrecks, Seabed Mining & Genetically Modified Organisms

Elections, Shipwrecks, Seabed Mining & Genetically Modified Organisms
I have had a demanding hearing schedule since the beginning of 2016.

Having recently come up for air, I thought it would be worthwhile sharing some of the highlights of the last 18 months.

It is also an opportune time for me to shamelessly engage in a little electioneering, as I am standing for the Auckland Branch Council of the New Zealand Law Society.

This newsletter covers:

  • My Auckland Branch Council election pitch
  • The Environment Court interim decision on abandonment of the MV Rena wreck
  • Trans-Tasman Resources Limited’s second bid to mine iron sand in the exclusive economic zone
  • Regulation of GMOs under the Resource Management Act
  • Recent publications

My Auckland Branch Council election pitch

If you are a member of the Auckland Branch of the New Zealand Law Society you are entitled to vote for three new Council members out of six candidates.

I am reliably informed that the Auckland Branch membership includes any practicing lawyers north of Waikato and Bay of Plenty. Don’t blame me Northland, I don’t make the rules.

I have felt for some time that senior members of the profession could do more to promote collegiality with young lawyers as a way of building a stronger profession. I invite Auckland Branch members (and Northland!) to cast a vote for me if you agree that this is a worthy goal.

Profiles for all the candidates can be found by clicking here

If you are an Auckland Branch member you would have received emails on 25 May and 6 June providing you with your electronic voting details. If you have any questions you can contact the returning officer by email iro@electionz.com or telephone 0800 666 044.

Voting closes at 4pm on Friday 16 June 2017.

The Environment Court interim decision on abandonment of the MV Rena wreck

I appeared as counsel, together with Tom Bennion and Tama Hovell, for Māori tribes (indigenous New Zealanders) opposed to an application to abandon the MV Rena wreck on Astrolabe Reef/Otāiti in a recent three-week hearing before the Environment Court. Although we represented different Māori tribes, we worked collaboratively to present a joint case.

The MV Rena ran aground on Otāiti on 5 October 2011. Through successive storm events the aft and bow sections of the vessel broke apart and sank on Otāiti discharging bunker oil and the contents of its cargo. This required widespread mobilisation of the Bay of Plenty community in response to extensive damage to the coastline from oil and debris.

The insurer and owner spent an estimated US$650m (around NZ$900m) on salvage works, making it the most expensive salvage operation behind the Costa Concordia. The insurer and owner then created a charitable trust, which was granted resource consent by the Bay of Plenty Regional Council to abandon the vessel on Otāiti and discharge any remaining contaminants into the marine environment.

Otāiti has significant cultural value to Māori in the Bay of Plenty. While some Māori tribes settled with the insurer and owner, others were unable to reconcile their cultural duty of environmental guardianship (kaitiakitanga) with leaving the wreck on Otāiti and the continued discharge of contaminants from the wreck and unrecovered cargo (incl. Tributyl Tin and copper).

The appeal was unusual insofar as the Māori opponents acknowledged from the outset of the hearing that there was no jurisdiction for the Court to order the removal of the aft section of the vessel. This was outside the scope of the application for abandonment, and would need to be the subject of separate proceedings if the Court allowed the appeals.

Even though a win would not lead to removal of the wreck, all Māori opponents sought the application for abandonment be declined as their first option. Despite that preference, some of the Māori opponents recognised that the Court would likely see granting consent as the best way of holding the insurer and owner accountable for the environmental management of the wreck into the future.

This meant a considerable part of the Māori opponents’ case was devoted to:

(a) identifying gaps in the Applicant’s assessment of risk and the wreck’s potential adverse effects on the marine environment;

(b) questioning whether the proposed consent conditions were sufficiently robust to mitigate adverse effects;

(c) ensuring that the charitable trust had adequate funding to manage the wreck, and was not merely a mechanism for further limiting the liability of the insurer and owner; and

(d) ensuring transparency in the allocation of environmental offset funding to different Māori tribes.

The Environment Court issued an interim decision, on 18 May 2017, (see Ngāi Te Hapū & Ngā Potiki a Tamapahore Trust v Bay of Plenty Regional Council [2017] NZENVC 073 (EC)) granting retrospective consent for abandonment of the wreck, but finding that more robust conditions of consent needed to be imposed on the consent holder. The parties have been directed to consult on appropriate conditions of consent, and, as is often the case, “the devil will lie in the detail”.

Overall, at least from the perspective of my clients*, the Environment Court’s interim decision can be considered a win for several reasons, including that:
* Te Rūnanga o Ngāti Whakaue ki Maketū Inc. and Te Arawa Takitai Moana Kaumatua Forum

  • The Court found that even though my clients had not filed submissions on the original application for consent to Bay of Plenty Regional Council, the effects on Māori cannot be disregarded because they are not submitters (see paragraphs [349] and [350]). The Court states at paragraph [361] that:

“We are particularly concerned that [counsel for the Applicant] suggest that issues under Part 2, particularly s 6, can only be addressed by the Court in circumstances where these have been raised by a party in submission. This would be to suggest that Part 2 is irrelevant where there is a non-notified application or a particular party does not raise them in their submission. On this approach protection of the environment envisaged under Part 2, particularly s 6(e), would be dependent on a submission in every case before there was an obligation upon the deciding authority or the Court to consider such matters. With respect this must be an anathema to the Act …”

  • The Court found that the limitation of liability under maritime law (i.e. Convention on Limitation of Liability for Maritime Claims 1976) did not prevent the imposition of stricter conditions on the consent for abandonment (under the Resource Management Act 1991) than those offered by the Applicant, stating at paragraph [373] that:

“We must assume for current purposes that the applicant is genuine and that the intention of the insurer and owner is to transfer not only the vessel to the Trust as applicant but also sufficient funds to complete the tasks the subject of the consent. Any other interpretation based on some limitation of liability would in our view render the entire process [otiose].”

[Otiose means to serve no practical purpose or result]

  • The Court found that despite the Applicant’s disagreement with the decision of the Bay of Plenty Regional Council at first instance, the Court had no jurisdiction to reach alternative conclusions unless these were sought under another appeal (see paragraph [381]).
  • The Court found that the objective of the conditions of consent should be to reduce the scope and concentration of contamination beneath international safety guidelines, and to observe movement of the wreck with some real potential for removal of parts of the bow if feasible and safe (see paragraphs [203] to [205]). For the consent to properly achieve these objectives the Court found at paragraph [389] it is necessary to have a thorough and robust monitoring and reporting system that should be timely, regular, and transparent, and allow for remedial and mitigation steps as well as modification of monitoring plans. Furthermore, the Court agreed that there is clear advantage in having a reference reef against which to assess changes on Otāiti (see paragraphs [196] and [197]). It is noted that despite the application being retrospective (i.e. much of the damage had already taken place), these findings have all the hallmarks of adaptive management (i.e. a precautionary) approach.
  • The Court found in respect of offset mitigation, given concerns raised by my clients, that stronger conditions are required in relation to the application of the coastal Te Arawa settlement fund (see paragraph [398]). The Court holds some hope that a consensus can be reached amongst coastal Te Arawa as to the administration of funds. However, failing agreement the Court anticipates the conditions of consent “would need to explicitly make the fund a contestable fund on application to the consent holder” (i.e. the charitable trust).
  • The Court found at paragraph [399], given the requirement for more robust conditions of consent, “that the bond will be recalculated once the final conditions can be assessed.

To see Ngāi Te Hapū & Ngā Potiki a Tamapahore Trust v Bay of Plenty Regional Council [2017] NZENVC 073 (EC) click here (37MB).

To see a selection of media articles on the MV Rena hearing click here.

Trans-Tasman Resources Limited’s second bid to mine iron sand in the exclusive economic zone

Trans-Tasman Resources Limited (TTR) lodged its second application to mine 50 million tonnes of iron sands per annum from the seabed of the South Taranaki Bight with the Environmental Protection Authority (EPA) on 23 August 2016.

TTR’s first application was declined in 2014 with the EPA finding that the application was premature. TTR should have taken more time to better understand the proposed operation, the receiving environment and engage more constructively with existing interests (including fishing interests). For a brief discussion and copy of that decision see my Winter 2014 newsletter by clicking here.

I was again briefed by maritime lawyers (Dawson & Associates), after the application was publicly notified in August, to represent Fisheries Inshore New Zealand (FINZ) and a range of commercial fishing interests including Talley’s Group Limited.

TTR’s new application ran into legal problems even before the period for making public submissions on the application had ended. This is because TTR made an application under s 158 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act) to restrict publication of plume information that had been redacted from the application.

Despite TTR’s plume information having been central to its decision to refuse consent in 2014, the EPA issued a direction on 14 September 2016 restricting the information to submitters who agreed to enter into a confidentiality agreement with TTR.

Talley’s Group Limited (on behalf FINZ and the other of the commercial fishing interests) joined Kiwis Against Seabed Mining, Greenpeace and Ngati Ruanui in seeking orders to have the EPA’s direction set aside given the importance of the plume information to the application. Ruling against the EPA and TTR, Judge Dwyer found at paragraph [68] that:

“… we conclude that the crucial nature of the [plume information] in informing the conclusions in the Impact Assessment, when combined with the public’s right to participate effectively in the consent process, outweigh any trade secret or business interest of Trans-Tasman by a considerable margin.”

TTR’s application went to hearing on 16 February 2017 and was due to close on 12 April 2017. Many of the submitters raised concerns that TTR’s application did not include any additional information on the receiving environment or the potential impacts of the proposal on the environment or existing interests. Strong evidential concerns were raised that this applied to the plume information, which the Environment Court had ordered to be made publicly available. Although the submitters’ experts conceded the plume model had been improved, there was inter alia insufficient information provided to validate TTR’s assumptions about its modelling inputs. For many submitters, including FINZ, this felt like “ground hog day” TTR 2014.

Two expert plume conferencing sessions indicated that too many assumptions remained in TTR’s modelling for it to reliably predict the extent of the proposed plume. Despite this, the EPA extended the hearing timetable on 22 March to allow TTR to produce further modelling evidence and require the submitters’ experts to address that new evidence. These directions, and others, became the source of considerable procedural argument from the submitters who contended that the additional costs of the process precluded their effective participation in the hearing.

In any event, after the production of considerable evidence by submitters, TTR abandoned reliance on the predictive elements of its plume model in the final days of the hearing. Instead TTR proposed conditions that fixed discharges at “end of pipe”, and restricted sediment concentrations too existing concentrations in the receiving environment. For the fisheries experts, this was all too little, and too late. TTR had not provided any substantive information on how these conditions could be satisfied. Accordingly, the fisheries submitters’ closing submissions delivered on the final day of the hearing, on 25 May 2017, continued to oppose TTR’s second application to mine iron sands in the South Taranaki Bight.

The hearing was formally closed on 31 May 2017, and the EPA has 20 working days within which to make a decision.

To see Closing Submissions for Fisheries Submitters dated 25 May 2017 click here.

To see Kiwis Against Seabed Mining Inc v Environmental Protection Authority [2016] NZENVC 217 (EC). click here.

To see a selection of media articles on the TTR hearing click here.

Regulation of GMOs under the Resource Management Act

I represented the Soil & Health Association of New Zealand (Soil & Health) in the Environment Court and High Court appeals brought by Federated Farmers of New Zealand (Federated Farmers) challenging the jurisdiction of local authorities to regulate GMOs under the Resource Management Act 1991 (RMA).

In simple terms Federated Farmers contends that genetically modified organisms (GMOs) are solely governed under the Hazardous Substances and New Organisms Act 1996 (HSNO). Whangarei District Council (WDC) and Soil & Health contend that HSNO simply provides a regime for introducing new organisms into New Zealand (e.g. GMOs), and that the RMA remains the proper legislative instrument for determining how GMO uses are managed and planned for in an integrated manner.

Federated Farmers were wholly unsuccessful in both appeals. This has resulted in two costs awards to WDC and Soil & Health. I do not intend to traverse the decisions in any detail here, as there has been a considerable amount written on both (e.g. Bronwyn Carruthers, “Case Law Update: Recent Resource Management Decisions and their Implications” Environmental Law Intensive New Zealand Law Society / Continuing Legal Education Ltd, National Seminar Series, November 2016).

Federated Farmers, having been granted leave, filed an appeal against the High Court’s decision in early May of this year. Despite recent amendments to the RMA confirming that there is provision for GMO crops to be addressed in RMA plans (s360D(1)), Federated Farmers has elected to pursue its jurisdictional challenge in the Court of Appeal. It seems likely that the matter will be heard towards the end of this year.

To see Federated Farmers of New Zealand v Northland Regional Council [2016] NZHC 2036 (HC) click here.

To see Federated Farmers of New Zealand v Northland Regional Council [2015] 18 ELRNZ 603 (EC) click here.

Recent and forthcoming publications

Recent publications include:

Makgill, R. and Gardiner-Hopkins, J., ‘The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012’ in Blakeley S (ed.), DSL Environmental Handbook, online and loose-leaf editions (Brookers Ltd, Wellington April 2016).

Makgill, R. and Linhares, AP., ‘Chapter 15: Deep Seabed Mining – Key Obligations in the Emerging Regulation of Exploration and Development in the Pacific’, in Warner, R. and Kaye, S. (eds.) Routledge Handbook of Maritime Regulation and Enforcement (Taylor & Francis Group, London & New York 2016) 231 to 261.

Makgill, R. and Parkinson, B. ‘The Marine and Coastal Area (Takutai Moana) Act 2011: The Commons, Customary Rights and the Marine and Coastal Area’ in Blakeley S (ed.), DSL Environmental Handbook, online and loose-leaf editions (Brookers Ltd, Wellington December 2015).

Makgill, R. and Linhares, AP ‘La régulation des fonds marins miniers dans le pacifique’, (2015) 58 France Forum 43 to 45.

Makgill, R. and Linhares, AP ‘Deep seabed mining regulation in the Pacific’, (2015) 869 LawTalk 26 to 27.

Forthcoming publication:

Makgill, R., Rennie, H. and Tafua-Rivers, C. ‘Feeling left out at sea? Navigating customary and public rights within Samoa’s coastal area’ (Publication to be identified)

Christmas 2016

Pohutukawa in summer bloom
Pohutukawa in summer bloom – The New Zealand Christmas Tree

Whether you are in the southern hemisphere’s summer or the northern hemisphere’s winter at this time of year, we wish you a wonderful Christmas!

In the New Year we will be providing a news update looking at significant legal issues arising from 2016 and coming up in 2017.

This will include our representation of:

  • The commercial fishing industry in Trans-Tasman Resources’ latest publicly notified application to mine iron ore in New Zealand’s Exclusive Economic Zone;
  • Maori tribes’ (indigenous people) Environment Court appeal against the Greek owner’s proposal to leave the MV Rena wreck on Otaiti-Astrolabe Reef and the seabed; and
  • Agriculturalists seeking to defend an appeal against decisions, of the Environment Court and High Court, that local authorities can manage the potential adverse effects of genetically modified (GM) crops on non-GM growers.

In the meantime, enjoy the festivities (and a long summer vacation if you are lucky enough to be south of the equator).

Best wishes

Robert Makgill, Ana Paula Linhares and Jill Thomson

International Environmental Law: The Practitioner’s Guide to the Laws of the Planet

International Environmental Law: The Practitioner's Guide to the Laws of the Planet
The omnibus International Environmental Law: The Practitioner’s Guide to the Laws of the Planet was recently published by the American Bar Association. The purpose of this book is to provide practitioners with a comprehensive and practical guide to international environmental law and its implementation in twenty-six key jurisdictions spanning the globe, including New Zealand.

Clients with multinational interests are increasingly required to navigate the rapidly emerging regime of international environmental law and its domestic implementation. Practitioners are called upon to advise governments, industry and non-governmental organisations on the ramifications of this regime for a range of sectors, such as fisheries, mining, and oil and gas.

The book introduces practitioners to key aspects of international environmental law and a practical framework for considering its implications for different clients. The following chapters provide a standardised template that enables comparative analysis of environmental law and its implementation within key domestic jurisdictions from around the world.

For a copy of the chapter on New Zealand, written by Robert Makgill, click here.

For more information on the full publication and where it can be purchased click here.

Winter 2014

Winter is proving to be a rather mellow affair, at least temperature wise.

I was surfing in a summer wet suit until recently, while the ski fields in the south cross their fingers for snow. However, things are always relative. It is also winter in Brazil, where I am told anywhere between 17 and 27 degrees can be considered cold. More on Brazil later.

This newsletter covers:

  • The offshore iron sand mining consent refusal – legal counsel for the seafood industry
  • Further submissions on the Auckland Unitary Plan
  • Recent publications and up-coming publications
  • Brazil

Trans-Tasman Resources Offshore Iron Sand Mining Consent Refused

Trans-Tasman Resources Offshore Iron Sand Mining Consent Refused
The Environmental Protection Authority (EPA) delivered its decision this week refusing Trans-Tasman Resources’ (TTR) application to annually mine 50 million tons of iron sand within the South Taranaki Exclusive Economic Zone (EEZ).

This decision comes after the first publicly notified hearing for resource development under New Zealand’s Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.

I was instructed by maritime lawyers, Dawson & Associates, to act as lead counsel for the New Zealand seafood industry. The seafood industry was concerned with the degree of uncertainty surrounding the potential effects of TTR’s proposal on primary production and existing commercial fishing interests.

In the summary of its decision the EPA states that:

“As required, we have addressed the effects of the proposal on the environment and on existing interests, using what we have determined is the best available information. In doing so, we have found that there is considerable uncertainty regarding the scale of those effects based on the information we had before us. In particular, these related to primary productivity and benthic effects and consequent ecosystem effects as well as the impacts on existing interests notably iwi and fishing interests.”

Commenting on the decision, Jeremy Helson, CEO of Fisheries Inshore New Zealand, stated:

“There just wasn’t sufficient information from TTR to provide an assurance that their mining wasn’t going to have effects on the marine environment that would harm fish populations and the wider seafood industry.”

For a full copy of the decision click here

Further submissions on the Auckland Unitary Plan

Auckland Council publicly notified its summary of submissions on the Auckland Unitary Plan on 11 June 2014.

The period for lodging further submissions, either in support or opposition to original submissions, is from 11 June 2014 to 5pm on 22 July 2014.

To view all submissions and the Council’s report click here

Recent publications and forthcoming publications

Publications this year have focused on oil and gas development within New Zealand’s EEZ. This includes:

Makgill, R., ‘Sounding Out Riches and Risk: Approaching Environmental regulation of Oil and Gas within New Zealand’s EEZ’ in Exploration and Development within the EEZ – offshore oil and gas (New Zealand Law Society, Wellington 2014) 1 to 34.

Makgill, R., ‘Oil and Gas in the Exclusive Economic Zone’, (2014) April Resource Management Journal 29 to 31.

Forthcoming publications include a new chapter on the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, with James Gardner-Hopkins (Partner, Russell McVeagh), for the Thomson Reuters DSL Environmental Handbook.

I will also be updating my existing chapter on the Marine and Coastal Area (Takutai Moana) Act 2011 in the Environmental Handbook.

Brazil

Brazil
This is to let you know that I will be in Brazil between 30 June and 23 July 2014.

I will be looking at oil and gas development and regulation while in Brazil. It is purely coincidental that this trip happens to coincide with the World Cup. My wife, who is Brazilian, is presently in Sao Paulo. This is a city of roughly 20 million people. I am told the building vibrated every time Brazil scored in the opening game.

I will be checking my email while I am away. But for any urgent matter please contact our office manager Susie Peacock on 09 815 6570 or susie@robertmakgill.com

New Appointment

Two articles regarding Robert Makgill’s appointment as an adjunct litigation instructor for The College of Law.

“Recently The College of Law New Zealand has been experiencing unprecedented growth in enrolments in its Professional Legal Studies Course or ‘profs’ as it is known. A call was put out to the profession in order to recruit additional teaching staff.”

Read more:

www.lawfuel.co.nz/news/1217/www.lawfuel.co.nz


“Five minutes with Robert Makgill, adjunct instructor at the College of Law New Zealand.”

“A love of surfing may have prompted Auckland-based barrister Robert Makgill (LLB, LLM) to specialise in environmental law, but it’s the opportunity to work on a variety of domestic and international matters that has kept him engaged for more than 20 years.”

Read more:

www.collaw.ac.nz/news-and-events/news/five-minutes-robert-makgill-adjunct-instructor-college-law-new-zealand/

Offshore Oil & Gas update

The government today announced that exploratory drilling for oil and gas will not be publicly notified.

The reasons behind the government’s decision, and its implications for industry and the public, are extensively discussed in the upcoming NZLS CLE seminar on offshore Oil & Gas: exploration and development within the EEZ.

Don’t miss this very topical and interesting seminar! You will be provided with a practical and informative introduction to the commercial, geological and technical challenges presented by offshore oil and gas. This industry has the ability to generate huge returns for the New Zealand economy. The seminar presents a unique opportunity to discuss these economic opportunities and what they could mean for your region, business and/or clients.

A reminder that this seminar is scheduled to be held in the following centres from 1.00pm – 5.00pm:

  • Christchurch – 10 March, The George
  • Wellington – 11 March, NZICA
  • Auckland – 12 March, Stamford Plaza

A webinar is scheduled for 12 March from 9.30 – 11.30am.

See here for information and to register and pay online.

Summer 2014

I hope you had a great summer break.

I spent my summer surfing, relaxing with family and steadfastly ignoring a pile of papers that various publishers probably think have been completed. Now that I am back to work this is bound to come back and haunt me.

Anyway, welcome to my first news post as a barrister. There are three things to announce at this point in the year:

  • my new website is finally completed;
  • an offshore Oil & Gas seminar will be held in the main centres in March; and
  • the submission period on the Proposed Auckland Unitary Plan closes on 28 February 2014.

Oil & Gas exploration and development within New Zealand’s Exclusive Economic Zone

Oil and Gas exploration
I will be one of the presenters of the New Zealand Law Society’s upcoming seminar on Oil & Gas exploration and development within New Zealand’s EEZ. I will discuss the regulatory regime, environmental compliance and preparing applications for marine consent.

The other presenters will be John Bay (Vice President NZ Oil & Gas) and James Willis (a former Partner at Bell Gully). John will address the practical aspects of offshore exploration and development, while James will cover the commercial aspects of upstream Oil & Gas.

John and James have a wealth of industry experience and promise to be entertaining speakers. If you are looking for a tour de force of offshore Oil & Gas, this is the seminar to attend.

The seminar will be run in Christchurch, Wellington and Auckland on 10, 11 and 12 March 2014. There will also be a webinar on 11 March.

Related files

For a copy of the seminar brochure and registration details please click here

Submission period on the Proposed Auckland Unitary Plan closes on 28 February 2014 – just three weeks from now!

If you are an Auckland property or business owner it is important for you to spend some time ascertaining how the Proposed Auckland Unitary Plan might affect you.

The proposed plan provides you with an opportunity to seek positive changes to the policies and rules that govern your property or business activities.

Equally important, there are many instances where property owners and business operators have discovered that the proposed plan seeks to reduce the extent of rights currently enjoyed under the existing planning regime.

The only way to advance or protect your property and business interests is to make a submission on the proposed plan. A well thought out submission now can save a lot of trouble in the future.

Instructing a town planner is a sensible and cost-effective first step if you have any concerns regarding how the proposed plan might affect you. However, you will need to hurry as the submission period closes on 28 February 2014. Just three weeks from now!

I am happy to discuss any queries or concerns that you might have about the proposed plan including which town planners might be most helpful to you in the first instance, depending on the issues at stake and your location within Auckland.

Please feel free to make contact if there are any issues that you would like to discuss.