A resoundingly successful win in the Court of Appeal turning down offshore seabed mining is a cause for great celebration, especially by conservation organisations. The outcome of the case fully supports ECO’s often pressed argument that New Zealand decisions on activities in and on the sea must give effect to our obligations to “protect and preserve the marine environment” under the UN Convention on the Law of the Sea (UNCLOS, or LOSC). ECO was not a party to the appeal.
The case concerned the Environmental Protection Authority’s (EPA’s) issue of a seabed mining consent to Trans Tasman Resources (TTR) in the South Taranaki Bight. This included a consent to discharge massive amounts of processed sand from a huge proposed seabed iron sands mining operation.
The case against the EPA’s consent, was taken by Greenpeace NZ, Kiwis Against Seabed mining (KASM), Forest and Bird, the Taranaki-Whanganui Conservation Board, and Ngati Ruanui Trust and a range of fisheries interests and other organisations.
The Court roundly criticised the EPA’s Decision Making Committee (DMC) for many errors of law. Central to the case is the relationship of international law to the application of New Zealand law. In this case, the law in question is the Exclusive Economic Zone and Continental Shelf Act 1994 (EEZ&CSA). ECO pushed to have international obligations including UNCLOS recognised in that Act – and in others.
We have also pressed the Ministry of Primary Industry to take seriously our international obligations relating to fisheries, and our Ministry for the Environment to recognise our international obligations relating to the environment and to biodiversity.
Justice Goddard in the Court of Appeal laid this out emphatically in the 3 April 2020 Judgement, going to the nub of the case in her first paragraph on the Reasons for the decision:
“ The United Nations Convention on the Law of the Sea (LOSC)  provides that New Zealand has a duty to protect and preserve the marine environment. New Zealand has the sovereign right to exploit the natural resources of its exclusive economic zone (EEZ) pursuant to New Zealand’s environmental policies, and in accordance with that duty. The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the EEZ Act) provides for the use of the natural resources of New Zealand’s EEZ in a manner that is consistent with New Zealand’s international law obligations, including the LOSC duty to protect and preserve the marine environment.”
The Second paragraph of the decision recognised the obligation to recognise iwi Treaty of Waitangi rights:
“ The Treaty of Waitangi (the Treaty) requires the Crown to respect the interests of iwi in relation to the marine environment and its resources, including (as we explain below) the kaitiakitanga relationship between iwi and the marine environment. The EEZ Act provides for decisions to be made about the use of the natural resources of the EEZ in a manner that recognises and respects the Crown’s responsibility to give effect to the principles of the Treaty.”
The judgement is clear and decisive. We expect that decision makers under the Fisheries Act, the RMA, Conservation and other Acts will now have to ensure that those international obligations are given effect in marine-related decision making.
Great credit is due to those people and organisations who took and ran this case, and particularly to Rob Enright, Duncan Currie, Cindy Baxter of KASM and Forest and Bird. It is a lighthouse case that will show the way for marine law navigation.
You can download the judgement here: CA573/2018  NZCA 86 [778 KB PDF]