The Environmental Protection Authority (EPA) granted Trans-Tasman Resources Ltd (TTR) consents to extract and process seabed material containing iron ore and to discharge processed material in the South Taranaki Bight. The consents permitted TTR to extract up to 50 million tonnes of seabed material per annum. Ten per cent of the material extracted would be processed into iron ore, on an integrated mining vessel, and the remaining material would be returned to the seabed by way of a controlled discharge.The granting of the consents was challenged by seven separate entities. The appeals were consolidated and heard together.

The broad issue for determination was whether the consents granted by the EPA were in accordance with the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act) and consistent with legal obligations arising from the Resource Management Act 1991 and international Conventions including the United Nations Convention on the Law of the Sea 1982 (UNCLOS).

Section 105 of the EEZ Act provides that an appeal lodged under this section (s 105) may only be a question of law.

Held: The appeal is allowed and the decision of the Decision Making Committee (DMC) is quashed. The DMC made a material error in applying a narrow interpretation of the concept of adaptive management approach. DMC’s interpretation is inconsistent with the meaning of that term in s 64 of the EEZ Act. Section 64(2) defines adaptive management approach as including:

(a) allowing an activity to commence on a small scale or for a short period so that its effects on the environment and existing interests can be monitored;

(b) any other approach that allows an activity to be undertaken so that its effects can be assessed and the activity discontinued, or continued with or without amendment, on the basis of those effects.

Although an adaptive management approach is valid and sensible, it is not available in relation to the discharge consent in an area governed by the EEZ Act. The narrow interpretation adopted by the DMC is inconsistent with the purpose of the EEZ Act of protecting the environment from pollution by regulating or prohibiting dumping of harmful substances. Its approach is inconsistent with the obligation in s 61(2) of the EEZ Act that, where information is uncertain, a marine consent authority must favour caution and environmental protection.

UNCLOS qualifies the absolute jurisdiction that New Zealand has over areas beyond its immediate territorial waters. It sets out obligations in relation to protection and preservation of the marine environment, the exploitation of natural resources and preventing reducing and controlling pollution of the marine environment.

The effect of international obligations on New Zealand legislation were discussed in Helu v Immigration and Protection Tribunal [2016] 1 NZLR 298. Decision-makers will apply the New Zealand statute rather than the international text. They may resort to the international instrument to clarify the meaning of the statute and legislation should be read in a manner consistent with New Zealand’s international obligations. But the international text may not be used to contradict or avoid applying the terms of the domestic legislation.

The way New Zealand’s relevant international obligations will be applied in relation to marine activity is to refer to them in s 11 of the EEZ Act. Section 11 provides:

This Act continues or enables the implementation of New Zealand's obligations under various international conventions relating to the marine environment, including - 

(a) the United Nations Convention on the Law of the Sea 1982;

(b) the Convention on Biological Diversity 1992;

(c) the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL);

(d) the Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matter, 1972 (the London Convention)

This indicates that compliance with the Act is the way that the legislature has decided to discharge New Zealand’s obligations under the various international Conventions. None of the international Conventions are incorporated directly into New Zealand law. Section 11 makes it clear that it is the provisions of the EEZ Act itself and not the wording of the Conventions that the DMC is required to take into account. In this regard, the DMC did not misunderstand its obligations under s 11.