In April of this year, the Court of Appeal delivered a landmark decision in a long-running legal battle between a company which wishes to mine the seabed off the coast of Taranaki and iwi, environmental groups and fisheries companies which oppose the plan.
The company, Trans-Tasman Resources, wants to mine 50 million tonnes of sand annually for 35 years, extracting iron and other minerals from the sediment and returning the unwanted spoil to the seafloor.
The scheme’s opponents say the operation will have destructive effects on the marine environment, marine species and people. The Environmental Protection Authority granted consents for the mining operation in 2017. The High Court quashed those consents in 2018, leading the company to appeal to a higher court, the Court of Appeal. That court has now found that both the EPA and the High Court erred in law.
Of particular importance is the court’s condemnation of the way that Māori rights and interests were treated during the EPA’s consenting process. Kennedy Warne explains.
Every now and then, a court decision comes along that has the potential to significantly shift the way that laws are interpreted and decisions made. Such a decision was released recently by the Court of Appeal, after considering a proposal to mine iron and other minerals from seabed deposits in the South Taranaki Bight.
Among the court’s findings was that the Environmental Protection Authority’s decision to grant consents for the mining operation was inconsistent with the requirement of the Exclusive Economic Zone (EEZ) Act to protect the marine environment. That duty, said the court, is non-negotiable.
“It is not consistent with the scheme of the EEZ Act to trade off harm to the environment caused by a marine discharge against other benefits, such as economic benefits,” wrote the court.
“Protecting the environment — keeping it safe from harm caused by marine discharges or marine dumping — is in this sense a bottom line.”
Even more trenchant was the court’s commentary on tikanga, and the failure of the EPA’s decision-making committee (DMC) to adequately address the principle of kaitiakitanga.
One of the flaws in the DMC’s approach, according to the court, was that it persisted in seeing the iwi’s concerns over the mining proposal as simply about resources: the impact of the mining process on the physical environment (water quality, etc) and species (loss of diversity, impact on kai moana, impact on whales and dolphins, etc).
The DMC neglected to engage with deeper concepts such as the mauri of the ocean. So when Ngā Rauru submitted to the committee that “seabed mining effects are a violation of kaitiakitanga”, and that, “as kaitiaki, we, as Ngā Rauru Kītahi, are defenders of the ecosystems and its constituent parts. We believe that everything has a mauri or a life force and that mauri must be protected,” the committee noted their concerns but didn’t give them the consideration they were due.
The Court of Appeal said this was a failure to have regard to the principles of the Treaty.
A particular point of debate during the EPA process was whether kaitiakitanga was entitled to be seen as an “existing interest” under the terms of the EEZ Act. Iwi submitted that it was, and that the DMC therefore needed to have regard to the impact of the mining proposal on their ability to perform the roles of kaitiaki.
The DMC was split over the relevance of this matter. The majority (three members of the committee) acknowledged there would be impacts on “kaitiakitanga, mauri, or other cultural values,” but went no further than acknowledging their existence.
In fact, by labelling them “cultural values”, they gave the impression that these are not as weighty as, say, environmental or economic values.
The remaining two members of the DMC took a much stronger stance. They said the mining application undermined the relationship of tangata whenua with their rohe, and did not adequately recognise their role as kaitiaki.
The kaitiakitanga relationship, the minority said, “is not limited to kai moana sites within the nearshore environment. The message of local iwi and majority of the wider community was consistent and clear — the social and economic benefits of the proposal are small and the environmental effects and risks to marine life are unacceptable.”
Ultimately, the minority argued, what is at stake here is not the ability to get a feed from the moana, but the integrity and vitality of the ocean — its mauri.
To explore the validity of kaitiakitanga as an “existing interest,” the Court of Appeal took as its starting point Article 2 of Te Tiriti, noting that it contains “an unqualified guarantee to the rangatira and hapū of New Zealand of ‘rangatiratanga’ (in te reo Māori) and ‘full exclusive and undisturbed possession’ (in English) in relation to their lands, estates, forests, fisheries and ‘taonga katoa.’”
For the purposes of the EEZ Act, noted the court, the exercise of those guaranteed rights and interests is a lawfully established existing activity.
“Indeed, the exercise of these rights and interests can fairly be described as the most long-standing lawfully established existing class of activities in New Zealand,” wrote the court.
More broadly, the court noted that “all customary rights and interests in relation to taonga referred to in the Treaty, including rights and interests in relation to the natural environment, qualify as existing interests.”
Thus, the DMC should also have taken into account the likelihood that customary marine title and protection mechanisms for customary activities would be processed and granted within the 35-year duration of the mining project — as iwi submitted.
Indeed, all the affected iwi have applied for recognition of customary interests under the Marine and Coastal Area (Takutai Moana) Act. Iwi argued that these interests are also “existing” in the terms of the act, and the Court of Appeal agreed.
“It was therefore necessary,” writes the Court of Appeal, “for the DMC to squarely engage with the full range of customary rights, interests and activities identified by Māori as affected by the TTR proposal, and to consider the effect of the proposal on those existing interests.
“In particular, in the context of this application, it was necessary for the DMC to address the impact of the TTR proposal on the kaitiakitanga relationship between the relevant iwi and the marine environment. Kaitiakitanga is an integral component of the customary rights and interests of Māori in relation to the taonga referred to in the Treaty.”
But the DMC failed to do so. Its focus was on bio-physical effects, not the underlying metaphysical realities.
“The DMC focused on the marine environment as a resource that Māori exploited to obtain food and other practical advantages,” wrote the court. It failed to grasp that, in te ao Māori,
kinship is the revolving door between the human, physical and spiritual realms. This culture had its own creation theories, its own science and technology, its own bodies of sacred and profane knowledge. These people had their own ways of producing and distributing wealth, and of maintaining social order. They emphasised individual responsibility to the collective at the expense of individual rights, yet they greatly valued individual reputation and standing. They enabled human exploitation of the environment, but through the kinship value (known in te ao Māori as whanaungatanga) they also emphasised human responsibility to nurture and care for it (known in te ao Māori as kaitiakitanga).
Explaining the relationship between kaitiakitanga and whanaungatanga, the court quoted Joe Williams, the first Māori justice of the Supreme Court.
“No right in resources can be sustained without the right holder maintaining an ongoing relationship with the resource,” wrote Williams in an essay that sought to map the Māori dimension in modern New Zealand law.
“No relationship; no right. The term that describes the legal obligation is kaitiakitanga. This is the idea that any right over a human or resource carries with it a reciprocal obligation to care for his, her or its physical and spiritual welfare. Kaitiakitanga is then a natural (perhaps even inevitable) off-shoot of whanaungatanga.”
If it seems surprising for a New Zealand court to provide a lesson in the Māori worldview as part of a decision about a proposal to mine the seabed, then it is equally surprising to hear the court lecture decision-makers on their failure to engage meaningfully with that worldview.
The DMC needed to confront the impact of the mining proposal on the whanaungatanga and kaitiakitanga relationships between affected iwi and the natural environment, the court wrote, “with the sea and other significant features of the marine environment seen not just as physical resources but as entities in their own right — as ancestors, gods, whānau — that iwi have an obligation to care for and protect.”
It follows, added the court, that tikanga Māori must be taken into account as applicable law where it is relevant to an application before the EPA. Moreover, tikanga needed to be addressed as it is understood and applied by Māori, not as some kind of approximation to suit Pākehā minds.
Iwi and other opponents of the mining proposal had hoped the Court of Appeal might find the legal flaws in the consenting process to be so great that it would dismiss the application in its entirety. That didn’t happen. The court said that it was not in a position to make that assessment. Instead, it referred the application back to the DMC to be reconsidered in the light of its judgment.
Meanwhile, Trans-Tasman Resources has appealed the Court of Appeal’s decision to the Supreme Court. Iwi and environmental groups are gearing up for a fourth time to fight the proposal in court. Many will be watching to see if the uncompromising assertions of the Court of Appeal in relation to kaitiakitanga rights and interests withstand the scrutiny of the highest court in the land.
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