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 firstname.lastname@example.org or telephone 0800 666 044.
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  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  and ). The Court states at paragraph  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  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 ).
- 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  to ). For the consent to properly achieve these objectives the Court found at paragraph  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  and ). 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 ). 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 , 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  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  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  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  NZHC 2036 (HC) click here.
To see Federated Farmers of New Zealand v Northland Regional Council  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., 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)