Is this the end of the road for seabed mining proponent Trans-Tasman Resources (TTR), or merely the start of a new chapter in its quest for consents? Kennedy Warne looks at last month’s Supreme Court decision.
The long-running legal battle between iwi, fishing interests, environmental groups and a company which seeks to undertake seabed mining off the coast of Taranaki reached its judicial culmination last month when the Supreme Court endorsed lower courts’ decisions that the Environmental Protection Authority (EPA) had made an error when it granted the environmental consents that would make the mining operation possible.
Last year, I reported on the Court of Appeal’s emphatic statements about how poorly Māori rights and interests had been treated during the EPA’s consenting process. That court came out strongly on the side of tikanga as applicable law that is relevant to any application the EPA is asked to consider.
The Supreme Court has agreed. In its September decision, the court elevates the importance of tikanga, giving it more legal substance than it has ever had since the advent of colonisation.
In his opinion in this case, Supreme Court justice Joe Williams reiterated the Court of Appeal’s conclusion that the interests of iwi with mana moana in a consent area are the longest-standing human-related interests in that place.
Those interests, such as mana, whanaungatanga and kaitiakitanga, are not just cultural values but principles of law that predate the arrival of the common law in 1840. Those charged with applying legislation (such as the decision-making committee of the EPA) must give them due heed.
To the court’s mind, decisions about what happens in the marine environment must consider their impact on Māori interests, as enshrined and codified in tikanga.
Tikanga is applicable law, and there is no negotiation of that reality. Recognising and respecting tikanga, says the court, is part of the Crown’s obligation to give effect to the principles of the Treaty.
That obligation is more than just a generalised acknowledgement of Treaty principles. Rather, there must be precise and particular legislative schemes to provide for and protect Māori interests.
It follows, write two of the Supreme Court justices, William Young and Ellen France, that Treaty clauses should be interpreted with a “broad and generous construction,” not a narrow, reluctant or begrudging way.
Breadth of interpretation includes, in the justices’ opinion, that there are spiritual aspects to decisions that affect the environment, not just physical or biological effects. Kaitiakitanga is a realm in which spirit is at the forefront.
As the Court of Appeal pointed out, when Māori speak about their role in protecting the mauri of the ocean — a life force that cannot be quantified in material terms — they must be given serious consideration as a matter of law.
This acknowledgement is crucial when considering the question of environmental harm. The legislation under which marine consents were sought, the Exclusive Economic Zone (EEZ) Act, says that prevention of “material harm” is an environmental bottom line. If the environment cannot be protected from such harm through regulation, then the discharge or dumping activity must be prohibited.
But how is harm to be defined? What makes it “material” harm rather than some lesser category of negative effect?
In its decision, the court says that determining the level of harm requires assessment not just of the amount of contamination to the environment (such as the amount of sand being discharged into the ocean during mining) but also the qualitative impact of the discharge (loss of water clarity, for example) and the time and area over which the impacts are felt.
In the court’s words, an applicant such as Trans-Tasman Resources (TTR) must show that it can “avoid material harm, mitigate the effects of pollution so that harm will not be material, or remedy it so that, taking into account the whole period of harm, overall the harm is not material.”
But the court went even further, noting that harm extends beyond the physical effects on the environment, and that “pollution can be spiritual as well as physical.” This recognition sets a high bar for environmentally damaging enterprises to clear.
Where to from here? In the wake of the Supreme Court decision, TTR has claimed that it now has a pathway to obtaining the consents it needs to undertake seabed mining. That pathway would entail making a fresh start with the EPA, now that matters of legal interpretation have been clarified by the courts.
“There are no aspects of the judgment that are an impediment to TTR having the consents re-approved,” wrote the company’s executive chairman, responding to the Supreme Court’s decision.
However, if the exercise of kaitiakitanga in protecting the mauri of the moana is a matter of applicable law, then it is hard to see how the company could satisfy the condition of avoiding material harms, especially if those harms include violations of kaitiakitanga.
But whether the Supreme Court ruling is “the final nail in the coffin” of TTR’s proposal, as Māori Party co-leader Debbie Ngarewa-Packer put it, remains to be seen.
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