Are we nearly there yet? Finding a sweet spot for seabed mining consents in New Zealand

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1 Are we nearly there yet? Finding a sweet spot for seabed mining consents in New Zealand September 2018 Richard Johnson MANAGER, EEZ APPLICATIONS

2 2 We are New Zealand s national environmental regulator: protecting our environment, enhancing our way of life and the economy.

3 3 Presentation outline New Zealand legislation Three seabed mining applications A sweet spot: process perspective A sweet spot: participants perspective What now?

4 EEZ and continental shelf

5 5 New Zealand Legislation The Exclusive Economic Zone Act 2012 (s 10) The purpose of this Act is (a) to promote the sustainable management of the natural resources of the exclusive economic zone and the continental shelf; and (b), to protect the environment from pollution by regulating or prohibiting the discharge of harmful substances and the dumping or incineration of waste or other matter.

6 7 New Zealand Legislation Information Principles (s 61) The decision-maker must: Make full use of its powers to request information from any party Base decisions on the best available information Take into account any uncertainty or inadequacy in the information available. Uncertain or inadequate information = favour caution and environmental protection. If a restricted s20 activity is likely to be refused, the EPA must first consider taking an adaptive management approach. Not available for dumping and discharge.

7 Three seabed mining applications & Ironsand Phosphorite nodules 20-40m water depth m water depth Sandy/silt seabed Diverse seabed incl rocky corals 5 million tonnes per year processed 1.5 million tonnes per year processed 66km 2 mining area Crawler extraction down to 11m Processing on mining vessel Waste material returned to seabed by discharge pipe 820km 2 mining area Trailing suction drag head extraction up to 1m deep Processing on mining vessel Waste material returned to seabed by discharge pipe

8 Three seabed mining applications 9 Measures TTR 2014 CRP 2014 TTRL 2017 Process length from lodgement of application (calendar days) 149 (days) 177 (days) 345 (days) Number of Submissions 4, ,773 Number of hearing days Number of technical experts heard (including EPA experts) Cost $2.1m $2.3m $2.02m

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10 11 Your idea of a sweet spot depends on your role in the process perhaps! Applicant Submitter Regulator

11 12 Looking for a sweet spot: Process perspective The application Pre-lodgement discussions with EPA: lengthy and broad Risk that talking to EPA technical staff, not decision-makers Significant effort at engaging local community and iwi but not very successful outcome Authoritative experts; Significant and new modelling work Conditions framework shaped by many Augier conditions, and management plans to be certified after grant of consent

12 13 Looking for a sweet spot: Process perspective The hearing An inquiry, led by decision-makers need to know Pursuit of information: time, cost, effort for all parties Principles of fairness and natural justice applied with rigour Publication of hearing procedures Everything published on EPA web site Taking hearings to local communities: openness, accessibility, good regulatory practice

13 14 Hearing Venues

14 15 Looking for a sweet spot: Process perspective The decision Full documentation: application, process, parties, the law, the evidence, legal advice relied on, statutory tests Clear findings and arguments; show the intellectual pathway Robust analysis Decision flows from matters considered and weighting applied to evidence For TTRL 2017 a full press release process

15 16 Looking for a sweet spot: Common participant perspectives Want a clear, certain, timely process Independent, authoritative decision-makers Process fair to all parties Want to be treated with respect Lawful, robust decision informed by great science If consent granted supported by clear, certain, relevant, enforceable conditions

16 17 Looking for a sweet spot: Things not going so well Length of process affects costs, and ability to continue engagement in process Lots of process decisions in 42 Minutes from the TTRL DMC Difficult to keep up with the process churn Contest between science/experts and strongly held community/non-expert views A place for the Maori world view

17 18 What next? Trans Tasman Resources appeal decision High Court Decision quashed Appeal to higher Courts available first to all parties Court directed a return to DMC for reconsideration with Court direction about approach to adaptive management

18 19 What next? Trans Tasman Resources appeal decision High Court Matters upheld by the Court Relevant purposes of EEZ Act: approach to Treaty of Waitangi and International law Effects on existing interests Information principles: full use of powers Pre-cautionary principle or caution Economic benefit does not need cost-benefit analysis

19 20 What next? A new approach by an applicant Applicant-prepared Environmental Scoping Document Template prepared by Western Australia EPA Not required or provided for by EEZ Act More structured approach than previous pre-lodgement engagement Uncertain as to its benefit Preliminary assessments by EPA staff not EPA decision-makers

20 21 What next? The EPA as a regulator is working on: Library of standard conditions Re-thinking how to word conditions on adaptive management post-ttrl decision Investigating science behind sediment dispersal and modelling Matauranga Māori: building indigenous world view into statutory decisionmaking Contributing to cumulative effects research: Sustainable seas

21 22 Conclusions Finding a sweet spot for consenting in seabed mining is a bit like Jason s search for the Golden Fleece: We don t get many shots at getting this right; few applicants Good to get clarity on some matters: TTRL High Court decision On-going information/data uncertainty Decision-makers need boldness and courage Decisions must flow from the information in any application And after all that Will we know when get there?

22 For more information contact: Richard Johnson