STATEMENT OF EVIDENCE OF REUBEN FRANCIS FRASER PLANNING

Transcription

1 BEFORE THE ENVIRONMENT COURT AT AUCKLAND ENV-2016-AKL ,43,45 UNDER the Resource Management Act 1991 ( Act ) IN THE MATTER OF: appeals under section 120 of the Act BETWEEN: NGAI TE HAPU & OTHERS Appellants AND BAY OF PLENTY REGIONAL COUNCIL Respondent AND THE ASTROLABE COMMUNITY TRUST Applicant AND VARIOUS Section 274 parties STATEMENT OF EVIDENCE OF REUBEN FRANCIS FRASER PLANNING Issues covered with references to Appendices A-C to the Court s Directions dated 29 June 2016: Appendix A: 32, 45 Appendix B: 2.2(e), 3.3, 4.3(c), 5.4, 9 3 rd Floor, ANZ Centre 247 Cameron Road P O Box 143 TAURANGA Telephone: (07) Consultant: P H Cooney Associate: R C Zame

2 1. QUALIFICATIONS AND EXPERIENCE 1.1 My full name is Reuben Francis Fraser. I am the Consents Manager at Bay of Plenty Regional Council ( Regional Council ), a position I have held since August I hold a Masters of Arts degree in Geography (Auckland 1999), specialising in coastal management. I am also a certified Resource Management Act 1991 ( RMA ) decision maker through the Making Good Decisions certification programme run by the Ministry for the Environment and Local Government New Zealand. 1.3 I have been employed by the Regional Council since October 2003; firstly as a scientist, then as a consents officer (from May 2005) and as a Senior Consents Officer from January From October 2011 to July 2014 I was the Council s Maritime Manager. From August 2014 I have been the Manager of the Council s consents team. 1.4 As the Consents Manager I am responsible for overseeing the Council s processing of resource consent applications. I am also responsible for managing a team of 12 planning officers and four administrators. 1.5 During my employment with the Regional Council I have processed a wide range of consent applications including consents for land disturbance, discharges, water use, stream diversions, coastal occupation, dredging proposals and the discharge of dairy effluent. 1.6 As the Regional Council s Consents Manager, I am familiar with the RMA, National Policy Statements and National Environmental Standards and other regulations, and the Regional Council s planning documents. I have previously presented evidence at Council hearings and in the Environment Court. 1.7 I have been involved with the Rena application since August My involvement has included preparing the initial summary of submissions, reviewing the initial reports (including the Section 87F Report prepared by Luke Faithfull). I co-authored the Supplementary s87f Report 1 presented to the Hearings Panel. I took part in the expert witness caucusing on Planning/Proposed Conditions in August 2015 and presented an update to the Section 87F reports to the Independent Hearings Panel at the close of the hearing, following presentation of all of the evidence, in September I attended the mediation held on 30 and 31 May 2016 on behalf of the Regional Council. 1 The Report was referred to as a Section 87F Report instead of a Section 42A Report as a result of the Applicant having initially made an application to direct refer the resource consent application to the Environment Court.

3 1.9 In this evidence I will cover: (a) (b) (c) (d) (e) (f) (g) The background, including the Council level hearing process; The proposal; The statutory and planning framework; Assessment of effects; Assessment of the Application against the statutory and planning framework; Conditions; and Particular issues raised on appeal I confirm that I have read the Code of Conduct for Expert Witnesses contained in the Environment Court Practice Note dated 1 December 2014 and that I agree to comply with it. In doing so I confirm that the statements made in this evidence are within my area of expertise (unless I state otherwise). I also confirm that I have not omitted to consider material facts that might alter the opinions stated in this evidence. 2. MATERIAL CONSIDERED 2.1 In the course of preparing this evidence I have considered the following documents and materials: (a) (b) (c) (d) (e) (f) (g) The application documents and AEE, including the technical reports; The Section 87F Report, Supplementary s87f Report, including the technical reports; The matters agreed during expert witness conferencing which took place prior to the Commissioners hearing; The Commissioners Decision and conditions of consent; The policy and planning documents relevant to the Application (as detailed in this evidence); The appellants notices of appeal; and The evidence filed by the Applicant in these proceedings, as well as the Copper Addendum Report and Wreck Degradation Report.

4 3. BACKGROUND 3.1 Since the grounding of the Rena on 5 October 2011 an open line of communication has been established between the Applicant and the Council. Regular informal meetings took place between the Applicant s consultant, Beca, the owners and their insurer (The Swedish Club) and different representatives of Council. 3.2 Initially, the purpose of the informal meetings was to have open and honest discussions about the challenges being faced on the Reef as part of the clean-up and salvage process and also provide the Council with regular updates on what phase of works were occurring on-site and what the long-term works programme would look like. These meetings also provided the Council with the opportunity to communicate its expectations in terms of the effects on the environment from the grounding and on-going works programme while the site works were being undertaken in accordance with the Maritime Transport Act (MTA) notices. The meetings were a positive part of the early stages of the Rena project and I feel that there were some good outcomes that resulted from these as far as the long-term outcomes of the Rena grounding. 3.3 As the Rena owners focus shifted to preparation of the Application, these meetings evolved into further informal pre-application meetings. These meetings allowed both parties to communicate their expectations around what any resource consent Application should look like (for what the Applicant was proposing) and what the minimum information requirements would be. As the pre-application process progressed, the Applicant provided the Council and its team of experts the opportunity to review the draft Application and technical reports and provide feedback on these documents to assist in streamlining the application acceptance process. This is common for any resource consent application process with the Council and there are many cases where large scale applications are provided in draft form to the Council for comment prior to the formal application being lodged. The meetings and discussions around the draft Application were constructive. 3.4 Due to the complexity of the Application and the wide scope of matters requiring consideration, the Council engaged a team of technical advisors to undertake specific reviews of the Application. This process was in itself complex as the Council needed to look outside New Zealand in order to find persons with a suitable level of expertise in order to provide it with advice. 3.5 Most of these technical advisors were involved in the pre-application process and provided initial feedback on the Applicant s draft technical reports. The technical advisors went on to consider the Application and accompanying AEE and provided reports to Council which informed (and were attached to) the Section 87F Report.

5 3.6 The experts engaged by the Regional Council were as follows: (a) Wildlands Consultants Willie Shaw, Martin Cawthron and Rachel McClellan Advice on Marine Mammals (including Acoustics) and Avifauna; (b) (c) TRC Tourism Ross Corbett Advice on Recreation and Tourism; Knight Line Limited Jeroen Jongejans Advice on Recreational Dive Safety; (d) Environmental Science and Research Peter Cressey and Matt Ashworth Human Health advice; (e) (f) (g) Centre for Tropical Water and Aquatic Ecosystem Research ( TropWater ), James Cook University, Jon Brodie, Eric Wolanski, Kathryn Berry and Jane Waterhouse Advice on Antifoulants, Water Quality, Ecotoxicity, Sediment Quality, Modelling and Ecology; Opus Consultants Reginald Proffit Advice on cultural matters; Bay of Plenty Regional Council Harbourmaster Jim Dilley Advice on Navigational Safety (who in 2014 moved to Christchurch to become the Canterbury Harbourmaster, but remained the Regional Council s witness through the hearing process); (h) Bay of Plenty Regional Council Senior Environmental Scientist Stephen Park - Advice on Antifoulants, Sediment Quality, Water Quality, Ecotoxicity, Ecology, and Modelling; (i) (j) (k) (l) (m) (n) Boffa Miskell Limited Rebecca Ryder Advice on Natural Character; Bay of Plenty Regional Council Policy Joanna Noble Advice on Natural Character Planning; Jacobs (formerly Sinclair Knight Mertz) Lance Marshall Advice on Wreck Deterioration, Structural Integrity and Long-Term Risks; Chris Battershill Chair in Coastal Science and head of the Coastal Marine Group in the Faculty of Science and Engineering at the University of Waikato; Global Salvage Consultancy Camiel de Jongh, Willem Brouwer and Hans van Rooij Advice on Wreck Removal and Salvage matters; and Awa Environmental Nicholas Conland (formerly of Jacobs) Bond assessment.

6 3.7 Throughout the course of those evaluations it became clear that the application would have only minor effects on a number of these matters, for example noise effects from salvage works. The Application 3.8 The Application was lodged on 30 May The Application was made under sections 15A and B of the RMA to abandon the remains of the MV Rena, its equipment and cargo on Astrolabe Reef (s15a) and to discharge any harmful substances or contaminants from the remains, equipment and cargo that may occur over time as a result of the degradation of the vessel. 3.9 The Application proposed a list of further works that were to be undertaken prior to the completion of the resource consent process to ensure the wreck was left in a benign as practicable state, including a reduction of the bow section to a minimum of -1m LAT, location and removal of the one remaining container containing plastic beads, removal of the accommodation block, and further clearance of the debris field The activities had a discretionary status under both the Proposed and Operative Regional Coastal Environment Plans. Submissions 3.11 The Applicant requested public notification under s95a(2)(b) of the RMA. Due to the public interest in the Application and the volume of information provided as part of it, the Applicant agreed to a doubling of the submission period to 40 working days under s37a(4)(b)(ii) of the RMA The Application was publicly notified on Friday 13 June 2014 and the submission period closed on 8 August One hundred and fifty one submissions were received. Of these, 101 were lodged in opposition, 38 were in support, 3 supported the 15A but not the 15B application, and 9 were neutral. Direct Referral 3.14 The Applicant initially applied to direct refer the Application to the Environment Court. The Council accepted this request and prepared a Section 87F Report. The Applicant subsequently decided to proceed through a Council-level hearing process instead of continuing with the direct referral.

7 Supplementary Section 87F Report 3.15 After the initial Section 87F report was written the Reef experienced another tropical storm, ex-tropical Cyclone Pam ( TC Pam ) in March 2015 which resulted in significant movement and collapse of the wreck structure and debris on the reef. There was also further recovery and clean-up works at the reef, including completion of the removal of the accommodation block and reduction of the bow sections. The container containing plastic beads had also been lost to sea In addition a large amount of further information was provided including a Copper Recovery Report, Rena Oil Report, further ADUS survey imagery; images and video footage; further sampling results and technical reports (amongst other things) A further supplementary Section 87F Report was co-authored by Luke Faithfull (author of the initial Section 87F Report) and I to provide an updated assessment of, and recommendation, on the Application in light of physical changes to the wreck following TC Pam and the more recent information provided to the Council, including all of the evidence filed on behalf of the Applicant and the submitters Council s technical experts provided further updated reports (evidence) which were attached to and informed the Supplementary Section 87F report. The Hearing 3.19 The Council appointed four experienced independent Hearing Commissioners to hear the Application. The hearing was held over approximately four weeks. Over 120 people provided evidence to the Panel The Regional Council s witnesses prepared evidence for the hearing and participated in expert caucusing, but not all of them attended the hearing to present their evidence. Only those experts who provided evidence in relation to key outstanding issues presented, including: (a) (b) (c) (d) Rebecca Ryder Natural Character Peter Cressey Human Health Dr Chris Battershill Background Environment and Monitoring Stephen Park Ecology, Ecotoxicity, Water Quality, and Sediment Quality 2 I note that the Summary of Hearing Appearances attached to the Decision does not include Lance Marshall, Camiel De Jongh, Reginald Proffit, or Reuben Fraser, who all presented evidence for the Council.

8 (e) (f) (g) (h) Jon Brodie - Ecology, Ecotoxicity, Water Quality, and Sediment Quality Lance Marshall Wreck Deterioration Reginald Proffit Cultural Effects; and Nic Conland Bond At the close of the hearing I presented an update to the Section 87F Report, which took account of all of the evidence and submissions that had been presented over the course of the hearing I have included below a table that sets out the stage/tasks and indicative dates at the Council level process. Caucusing 3.23 Both in the lead up to and during the Commissioner hearing there was expert caucusing held for a range of experts. The Panel also invited the experts and planners to caucus together on conditions towards the end of the hearing. This took place over two days (7 and 8 October 2015) and an amended set of proposed conditions was provided to the Panel, identifying areas of agreement as well as disagreement. The focus of the caucusing was largely on developing a tiered response and contingency measure process and this process is set out in the Decisions Version of Conditions (Condition 9). Stage and Tasks Indicative Dates Application lodged Friday 30 May 2014 Application reviewed for completeness Friday 6 June Application is accepted as complete Monday 9 June Application publically notified Friday 13 June Close of submission period 8 August (40 working days for submissions) Applicant lodged request to directly refer the application to the Environment Court 15 August (within five working days from close of submissions) Council decision on Direct Referral 5 September (Within 15 working days of request and notify the Applicant receiving the request for Direct Referral.) Council releases s87f report 6 November Council extends time for Applicant to 20 November respond to s87f report until 4 December Applicant announces decision to proceed 4 December with Council hearing Council appoints Commissioners to hear 3 February application Resource Consent Hearing Monday 7 September Thursday 24 September 2015 Thursday 1 October 2015 Friday 9 October 2015 Hearing Commissioners Decision 18 December 2015

9 4. THE PROPOSAL 4.1 A description of the Proposal is provided in Keith Frentz s on behalf of the Applicant. 4.2 The Proposal is to abandon the remains of the MV Rena on the Reef in the general area of the grounding and to authorise any future discharges of contaminants from those remains. 4.3 The Application does not seek to authorise by resource consent the grounding incident itself, or the discharges of contaminants that occurred as a result of the grounding. 4.4 The nature of the Proposal is very unique not only because it is a shipwreck but also because it is a prospective proposal for something that is already in place. These two factors have the potential to make the assessment of the Proposal under the RMA quite complex. However my view has been, and still is, that a real world approach needs to be taken to the Proposal and that the aim of this consent process should be to ensure that a robust framework is in place to manage the effects, both actual and potential, into the future. 4.5 As Mr Frentz describes, the Application was prepared and lodged while salvage and recovery works were underway in the expectation that consent might be granted before the works was finalised. As such the Application outlined a consented state or proposed state of the wreck. 4.6 Since the Application and the Commissioner hearing there have been further changes to the environment on the Reef. This is due not just to the time that has passed but also the further debris removal undertaken by the Applicant. This debris salvage went beyond the level anticipated in the Application. 4.7 Since the Commissioner hearing: (a) (b) (c) New Zealand Diving and Salvage completed its debris recovery operations in March 2016; The exclusion zone was lifted by the Harbourmaster on 4 April 2016 following the withdrawing of the Maritime NZ notices and small vessels were allowed to return to the area; Two further monitoring rounds have been completed and analysed by the Applicant (Round 5: December 2015 and Round 6: July September 2016); and

10 (d) A Copper Recovery Addendum Report dated October 2016 ( Copper Addendum Report ) and Wreck Degradation Report dated 27 October 2016 ( Wreck Degradation Report ) have been provided by the Applicant. 4.8 The environment on the reef is one that is constantly changing and this will continue to be the case as the wreck and debris field degrades over what Mr Marshall has estimated to be the next years. The evidence for Mr Marshall is that the that the state of the Rena wreck is currently such that severe storm events could still lead to the collapse or movement of sections of the wreck particularly those lying in shallow water. However he is of the view that the likelihood of this occurring appears to be less and less as time passes without movement taking place. 4.9 He also notes that the larger and deeper sections of the reef remain in the position they were following TC Pam, in an almost flat position on the seabed. He concludes that those sections to be less affected by water conditions, including during storm events, but that they are less likely given this and their almost flat position, to slide further down the reef So, while the environment is changing and will continue to do so as the wreck corrodes and degrades over time, those changes are becoming less pronounced as time progresses An explanation of the present nature and position of the wreck is provided in the evidence of the Applicant OUTLINE OF STATUTORY AND PLANNING FRAMEWORK 5.1 The Proposal is a discretionary activity under Rule 9.2.4(b) of the operative Regional Coastal Environment Plan 4 and is therefore to be assessed in accordance with sections 104 and 104B of the Resource Management Act 1991 ( the Act ). 5.2 The Application is made under sections 15A and 15B of the RMA. I note that Ngai Te Hapū Incorporated have taken issue with whether the application should be treated as one under s15a to dump a ship. I consider that section to be the appropriate section (and the appropriate activity classification, ie dumping of a ship). Dumping includes abandonment, which must cover shipwrecks, which by their very nature are likely to be damaged. This does not mean they cease being a ship for the purposes of the section. In any event the activity would still be discretionary under section 87B(1)(a) of the RMA. 3 For example refer to paragraphs 4.6 through 4.9 of the evidence of Keith Frentz, the evidence of Roger King, Colin Baker, and Dr Phil Ross. 4 Although not technically a discharge as is commonly understood, a discharge permit is required to authorise an activity under s15a. If the abandonment of the wreck and associated debris was not considered a discharge under Rule 9.4.2(b) it would default to consideration as a discretionary activity under s87b(1)(a) of the RMA.

11 5.3 In my opinion the matters to be had regard to for this Application are: (a) (b) The actual and potential effects of allowing the remains of the MV Rena to be abandoned; Relevant provisions of: (i) The Resource Management (Marine Pollution) Regulations 1998; (ii) The New Zealand Coastal Policy Statement 2010; (iii) (iv) The Bay of Plenty Regional Policy Statement; and The operative and proposed Regional Coastal Environment Plans; (c) Any other matter considered relevant and reasonably necessary to determine the application, which in my opinion includes in particular a number of iwi / hapū management plans. 5.4 There are several claims for customary marine title in the area around Ōtāiti (Ngā hapū o te Moutere o Motiti, Ngā Pōtiki and Ngāti Whakaue ki Maketu). Those claims have not yet been resolved. There is a requirement under the Marine and Coastal Area (Takutai Moana) Act 2011 for applicants for resource consent to consult with applicant before a consent application is lodged. The applicant has consulted with these groups (refer to the Summary of Tangata Whenua Consultation attached to the evidence of Shad Rolleston). 6. ASSESSMENT OF ENVIRONMENTAL EFFECTS 6.1 At the Commissioner hearing a wide range of experts presented evidence on a wide range of actual and potential effects of the Proposal and caucusing was also undertaken. The experts were able to reach the conclusion, and this is reflected in the Decision, that a number of potential effects were not expected to be an issue into the future. 6.2 These effects, which I will not canvass in any detail, include effects on marine mammals, avifauna, coastal processes, social impacts, recreation and tourism impacts, heritage effects, recreational dive safety, fisheries, and navigational safety. 6.3 I understand that the Appellants intend to call two economists to present evidence at the hearing. There was no economic evidence presented by any of the submitters at the Council level hearing it was not an issue raised. I do not know what particular issues the Appellants now intend to raise and there are no economics experts involved at this stage for either the Regional Council or the Applicant.

12 6.4 The conclusion of the Section 87F Report on economic effects was that, taking into account both the positive tourism effects from reinstating access to the Reef and the negative impact on the local community from the ceasing of recovery and salvage operations, overall there could be considered some level of economic benefit. I note that at the Council hearing Ross Corbett (for the Regional Council) and Rob Greenaway (for the Applicant) were in agreement that the net outcome for tourism from the Proposal is most likely to be positive and this was accepted by the Panel The key effects that are raised in the notices of appeal are: (a) (b) (c) (d) Effects arising from contaminant discharges and ecological effects; Effects on natural character and natural landscape and feature attributes; Human health, and Māori health in particular; and Cultural effects. 6.6 I note that due to the dynamic nature of the environment on the Reef and the ongoing salvage operations through to March 2016, there has been a continual need to undertake updated assessments in order to determine the level of effects. Time has passed. The level of effects overall has reduced. Based on the evidence that I have considered, the effects of the Proposal are now generally less than they were at the time of the Decision. Existing Environment 6.7 The matter of existing environment will be further discussed through the Regional Council s legal submissions at the hearing. As noted earlier, I am of the view that a real world approach should be taken. 6.8 I do not consider it to be a realistic or real world approach to ignore that the MV Rena is on the Reef, and undertake an assessment of effects against a pre-rena environment. 6.9 However in my view the pre-rena environment is relevant in order to understand and assess the cumulative or future effects of the Proposal, because it informs our understanding of the receiving environment and its assimilative capacity In other words, the effects of the grounding itself do not form part of the Proposal, but the contaminants released and currently present are to be taken into account when assessing cumulative or future effects of the wreck remaining in situ. 5 At paragraph 504 of the Decision.

13 Contaminants and Ecology 6.11 During the lower level process there were a range of contaminants of concern. As time has progressed, a number of the contaminants have dispersed and are no longer of concern. The key contaminants remaining in some form on and around the Rena are copper clove and Antifouling paint / TBT The plastic beads, potassium nitrate, ferrosilicon, and TCCA were all discharged prior to the Commissioner hearing and no longer pose any significant environmental concerns Time has passed and further monitoring has been undertaken, and the Council has asked Jon Brodie to review the data and Applicant s evidence and provide an updated assessment in light of this. Copper Clove 6.14 There was one container holding 21 tonnes of copper clove in Cargo Hold 6 when the Rena grounded and was not recovered prior to the storm that resulted in the Rena breaking in two and sinking into deeper water. Following that the exact location of the copper was not known The presence of copper clove was a key issue at the lower level hearing. At that hearing all experts involved were in agreement that the copper has the potential to have significant ecological effects and that the priority should be to find it and where practicable remove it. 6 The potential for a mass release of copper clove caused by the movement of the wreckage was a key potential threat of concern The Section 87F Reports identified copper clove as the key contaminant of concern in terms of its potential for adverse ecological and environmental effects on the Reef and marine environment. The Reports recommended that it be removed where possible as a condition of consent, and conditions to this effect were included in the Decision s Version: (a) Condition 8 requires Wreck Condition and Debris Monitoring to be undertaken, one of the purposes of which is to identify aspects of the wrecks condition that may affect the risk of copper contamination release, or which present opportunities for the further recovery of copper clove (Condition 8.1). Monitoring of copper clove is also required as part of the Physical Environment Monitoring Plan. Condition 7 sets out the purpose and minimum requirements for this Plan, including the 6 Previous Joint Witness Statement on Ecology and Contaminants dated 18 August 2015, at paragraph 9.

14 requirement that it be prepared in consultation with the Independent Technical Advisory Group ( ITAG ) and the Kaitiakitanga Reference Group ( KRG ). 7 (b) Condition 11 then deals with Copper Clove specifically and requires the Consent Holder to implement a series of actions upon discovering copper clove, requiring removal as soon as practicable or preparation of a report identifying why it cannot practicably be removed and proposing alternative or offset mitigation During the hearing and after the Applicant, through its salvors, undertook a copper recovery exercise. The methodology and estimated amount of copper removed is detailed in the Copper Recovery Addendum Report and in the evidence of Mr King. 8 The evidence for the Applicant is that the unrecovered copper clove (estimated between 7 and 12 tonnes) has either dissipated or is encapsulated in or below the remains of the aft section s hull structure Mr King and Mr Barker, for the Applicant, have explained in their evidence that Hold 6 has collapsed and any copper remaining within it would be encapsulated in its remains. Mr Marshall has considered this evidence and the Wreck Degradation Report. He agrees that this is the most likely situation. He also considers it unlikely that the wreckage will slip further, but instead will continue to collapse in on itself so the threat of a mass release is lessening Mr Brodie agrees with the conclusions of Dr Ross and Dr De Luca in relation to the ongoing effects of copper. He concluded that there will be continuing effects from the slow release of oxidised copper from the remaining copper clove, but the effects will be constrained to a very small area of the wreck site and hence an even smaller proportion of the total area of Ōtāiti. Thus future effects overall will be minor However given the significant effects it can have in that small area, Mr Brodie remains of the view that copper clove, where identified and able to be recovered, should be, as per the conditions of consent. The appropriate methodology and the practicability of removal would need to be assessed in the event that copper clove was exposed and identified, and this is provided for in the consent conditions I am of the view that the actual and potential effects of copper clove can be adequately managed via the processes provided for in the Proposed Consent Conditions. The evidence is that any attempts to remove the remains that the copper is encapsulated in will be more likely to release the copper clove than leaving it in situ. 7 Condition Paragraphs At paragraph 33.

15 Antifouling Paint TBT 6.22 Tributyltin ( TBT ) is an organotin compound, which was commonly used in anti-fouling paints up until the 1990s, and it is highly toxic to a number of marine organisms TBT degrades and becomes less toxic over time. The half-life of TBT within marine sediments is 5-10 years. It is also, unlike copper clove, impossible to detect visually in sediments, making any recovery of it near impossible. TBT is still being detected around the wreck site and in off-reef sediments Mr Brodie has concluded that the imposex observed in the monitoring is biologically significant at the site of observation but as the site is small in area overall, at the scale of Ōtāiti, the effect is not ecologically significant. He considers that the effects of TBT will continue for several years but will decline through time as TBT degrades to (non-toxic) tin In my opinion the most appropriate approach is to continue monitoring for TBT under the proposed Physical Environment Monitoring and if there is for some reason an unexpected increase in the levels of TBT found in the sediments then this should be the trigger for the contingency measures. Other contaminants 6.26 I note Jon Brodie s conclusion that the results for polycyclic aromatic hydrocarbons (PAHs), nickel (Ni) and zinc (Zn), while still concerning (still present at concentrations able to potentially cause toxicity), are of less concern than for the copper as there is no further major source of these contaminants within the wreck or debris field and as a result their concentrations can be expected to decline relatively rapidly (a decade possibly) to below ANZECC guideline concentrations He also concluded that it was difficult to see how any further actions at the site would reduce the concentrations because they cannot be located visually. Multiple stressors / cumulative effects 6.28 The concern with multiple stressors is that earlier sampling results showed that there were multiple contaminants above guideline levels and Council s experts considered that adverse cumulative effects could result from additional discharges I understand from Jon Brodie s evidence that multiple stressor effects do not appear to be cause for concern presently, and that any effects remain localised to the wreck site.

16 Scouring 6.30 There is potential for moving pieces of the wreck, particularly the bow pieces, to scour the reef, which can have ecological impacts if it damages areas that have been colonised. This was an issue raised in the Council level hearing Earlier there was some indication of scouring on the reef but it was not clear at that time whether it was from movement of mobile pieces of the wreck or from the salvage works. There was also evidence that the pieces had moved from near to the top of the reef to deeper water at lee side of the reef and that their location in deeper, more protected water suggested that they would be exposed to weaker wave forces (Mr Marshall) Jon Brodie agrees with the opinion of Dr Ross that the likely effects of the large bow pieces moving and causing scour will decline with time as some of the pieces move into deeper water. In their present location both Mr Marshall and Mr Brodie consider they are in a more sheltered location than they were prior to TC-Pam and are theoretically less likely to cause scouring due to the water depth and protection of the reef from the prevailing winds and waves In my opinion, after considering the evidence provided to date, the risk to ecology from scouring is relatively low. I consider that the best course of action is to provide a mechanism through the proposed monitoring plans for monitoring of this potential effect, and the ability for the ITAG to recommend a review of the consent in the event significant adverse effects are identified. In this regard, I note that Condition 7 includes as one of the purposes of the Physical Environment Monitoring the measuring of the scour/smother effects resulting from movement of the wreck, and the minimum information requirements require any such areas of scour to be sampled (Conditions 7.2.1(d) and 7.2.2b).1). The ITAG has a role in reviewing and advising on the Monitoring. Further, Condition 8, the Wreck Condition and Debris Monitoring Plan, also requires the extent of movement of shallower bow pieces to be monitored. Natural Character and Natural Landscapes and Features 6.34 Otaiti is identified as having outstanding natural character and is also identified as part of the wider ONFL Area 44 in the Proposed Coastal Environment Plan At the Council level hearing Rebecca Ryder provided evidence on the effects of the Proposal. She concluded that the retention of the wreck on part of the Reef, subject to the conditions of consent, would not detract from the classification of the Reef as having outstanding values.

17 6.36 The Hearing Panel concluded that there would be significant adverse effects on the reef as an area of Outstanding Natural Character and on the wider Outstanding Natural Feature and Landscape of which it forms part The reasons at that time included that there were significant effects on the cultural values of Māori who have a relationship with the Reef, the biota of the reef has been affected by released contaminants, the presence of contaminants pose a significant potential threat to the ecological health of the reef, and the wreck and debris is scattered over a relatively wide area and parts of it could disintegrate and break into further pieces. 11 I consider that there is now a reduced effect on cultural values across Maori (while accepting there is evidence to come from several opposing groups) and a reduced potential for contaminants to be exposed The Council has engaged John Hudson to undertake a further assessment of the effects on the values of the reef, including in light of the time that has passed since the Decision and taking into account the most recent information Mr Hudson has completed an initial assessment pending consideration of the further evidence to be provided. His conclusion at this stage is that the Rena presently has significant adverse effects on the natural character and landscape values of the reef in the area where the wreck is located. However he states that these effects will continue to lessen as time passes and do not prevent the reef retaining its outstanding classifications. He also comments that it is not clear what the effect of any removal works would be, and whether that would improve, maintain, or worsen the effects on the values Overall it appears that the Proposal may result in continued localised adverse impacts on the landscape and natural values of the reef but that these will continue to improve as time passes. Human Health (and Māori health) 6.41 While the Regional Council has not engaged an expert in Māori health, it has engaged Peter Cressey to review the updated information and provide an assessment of potential effects of the Proposal on human health generally Mr Cressey has concluded that the potential dietary exposure to TBT from consumption of fish and kina harvested from the Reef is well within health-based exposure limits for TBT, which is the key contaminant of concern in terms of human health. He has also concluded 10 At paragraph 493 of the Decision. 11 At paragraphs 490 and 491.

18 that the concentrations of copper in edible biota are unlikely to constitute a risk to human health. This is based on a conservative exposure assessment they include assessing a person eating four times the national average of seafood, which is considered to be an appropriate approach for this Proposal Mr Cressey does comment that the TBT concentration in fish and associated estimates of dietary exposure have not yet started decreasing and as such he supports continued monitoring (under the Physical Environment Monitoring Plan) to ensure any increase is able to be detected. That being said, he also agrees that is it reasonable to conclude that TBT concentrations will decrease over time (beyond perhaps 2018) Mr Cressey also supports the ITAG having a role in determining appropriate trigger levels. The consent conditions presently provide for the ITAG to review and advise the Regional Council on the trigger values proposed by the Consent Holder and I consider this to allow sufficient scope for the ITAG to play a role in the determination process (Condition 4.4(b)) I consider the effects on human health to be very low based on the most recent sampling rounds and Mr Cressey s analysis of them. I have not considered the potential for effects on Māori health (insofar as it differs from general population health) but understand that evidence will be given in respect of this. In my opinion the most appropriate means of ensuring that any health effects that could arise in the future are able to be addressed, is to make sure there is a robust monitoring and response process in place In this regard, I note that the purpose of the Physical Environment Monitoring Plan is to determine whether the exercise of the consents is resulting in, or is likely to result in, risks to human health as well as addressing ecological matters. In the event that monitoring demonstrates that there is a risk to human health the Consent Holder is required to immediately contact the Council, the ITAG, the KRG, and Toi Te Ora (Bay of Plenty District Health Board) to enable response and contingency actions to be agreed and implemented (Condition 9.3.3). Cultural Effects 6.47 I have not yet had the opportunity to consider the evidence to be filed by the Appellants and interested in relation to cultural effects. However I did hear their evidence at the Council level hearing, as well as the evidence of a number of other groups, including the evidence of: (a) (b) Te Patuwai Hapu (Karla Akuhata); Korowai Kahui O Nga Pakeke O Te Patuwai (Nepia Ranapia);

19 (c) (d) (e) (f) (g) (h) (i) Nga Potiki A Tamapahore Trust (Tamati Waaka and Colin Reeder); Ngai Te Hapu (Elaine Rangi Butler, Hohepa Joseph Harawira, Alice Kiwa, Graeme Aitken, Nevan Lancaster, Peri Kohu, Rehua Smallman, Shaw Mead, Wayne Larsen, Alan Fleming, Buddy Mikaere, Nadia Haua, Mabel Wharewaka, Des Heke, Maihera McLeod and Jack Thatcher); Ngai Te Rangi (Penetaka Dickson and Reon Tuanau); Te Whanau a Tauwhao ki nga Moutere Trust and Rangiwaea Marae (Ngaraima Taingahue); Te Arawa (Piatarihi Bennett, Justin Te Kowhai, Raewyn Bennett, Timi Te Po Hohepa, Dr Kepa Morgan, and Te Ariki Morehu); Motiti Rohe Moana Trust (Roger Grace, Graeme Lawrence, Di Lucas, Anna Meissner, Umuhuri Matehaere, Maanu Paul, Graham Hoete, Hugh Sayers, Dr Daniel Hikuroa, and Jacqueline Haimona);12 and Ngati Awa (Pouroto Ngaropo, Enid Ratahi-Pryor, Wayne Marriott, and Ray Thompson) The evidence was largely in opposition to the Proposal and was very heartfelt and comprehensive Following consideration of all of the evidence, my conclusion, and the conclusion of the Hearing Panel, was that effects of the Proposal on Māori values would be significant, notwithstanding the conditions of consent. Post-Decision 6.50 Since the Decision there has been further clearance of the debris and the reef is starting to show indications of recovery Te Patuwai and Ngati Awa appealed the Decision, but have now withdrawn their appeals on the basis that they are satisfied with the Proposal and conditions. Te Whanau a Tauwhao also appealed and then withdrew on the same basis. Shad Rolleston explains in his evidence 13 that Brendon Taingahue dived the Rena wreck and his observation of the recovery of the reef led to Tauwhao s decision to withdraw. 12 Motiti Rohe Moana Trust withdrew their submission towards the end of the Council level hearing on the basis that they were satisfied with the Proposal and conditions. 13 At 6.10

20 6.52 Ngai Te Rangi, Nga Potiki a Tamapahore Trust (Nga Potiki) and Ngai Te Hapu Incorporated are the three groups who have remaining appeals against the Decision and seek decline of the consents Te Runanga o Ngati Whakaue ki Maketu and Te Arawa Takitai Moana Kaumatua Forum have joined the appeals as a section 274 party on the basis that they have an interest greater than the public generally. They did not lodge a submission on the Application, but were given leave to present their cultural impact assessment to the Hearing Panel Nga Tangata Ahikaaroa o Maketu, Te Kaahui Kaumatua o Te Patuwai, Ngati Tunohopu, Ngati Pikiao Environmental Society, Maketu Taiapure Committee and Ngati Makino Heritage Trust have also joined as interested parties but in support the Proposal, as has the Motiti Environmental Management Incorporated (which includes Māori landowners on Motiti). While I have not had the opportunity to consider their evidence, it is apparent from their interested party notices that there is a desire to avoid further damage to the reef environment from removal works and a preference to have consent conditions in place (which include provision for restoration funds, the KRG, and cultural monitoring) than not The fact that a number of key groups, including in particular those with direct and enduring relationships with Ōtāiti, have now accepted the Proposal represents a significant change in circumstances since the Hearing Panel considered the evidence and made their decision at the lower level hearing and since I reached the conclusion that effects on Māori values were significant It may be that, following consideration of the evidence provided by the opposing groups at the hearing, there is a conclusion reached that the adverse effects on the relationship of those particular groups with the reef are significant However given the shift in position since the Decision, particularly amongst key groups with direct relationships with the Reef, in my opinion it is difficult to accept that the Proposal will have universally significant effects on Maori. Rather, it is clear that there are mixed views amongst Māori and some are very much in opposition to any further removal works or a decline of consent (with the result being that no consent conditions apply) I remain of the view that it is not the case that the only way in which effects on the opposing parties can be mitigated is by declining consent. A completely unmanaged environment is a much worse outcome, including for Maori, than one where a consent with conditions is in place I consider the conditions of consent to be comprehensive and to appropriately recognise and provide for the relationship of these groups and in doing so to adequately address the effects of the Proposal on them. In particular:

21 (a) (b) The requirement to establish and maintain a Kaitiakitanga Reference Group ( KRG ) which is then involved in advising the Consent Holder on monitoring, including cultural monitoring, and response and contingency measures and is to provide a forum for information and liaison for all Māori with a relationship with the reef. The KRG needs to be consulted before appointing the Independent Technical Advisory Group, and it can nominate one of its members to sit on that group. I will discuss the KRG make-up further in the section on conditions. I note that the KRG will be appropriately representative having regard to the nature of the functions it will be required to perform. The requirement for a Cultural Monitoring Plan, which requires identification and monitoring of effects over time on cultural values and of species important to customary fisheries and needs of Māori who have a relationship with the reef. (c) The sizable restoration and mitigation funds that are to be provided. These include $1.5 million for the benefit of the Motiti Island community, $1.25 million for projects for the benefit of Te Arawa ki Tai (coastal Te Arawa), and $250,000 for projects for the benefit of the Tauranga Moana community. The opposing parties all have access to these funds to be used for the benefit of their people. There is also a scholarship fund of $160,000 that could be granted to members of these groups Lastly I note that the cultural evidence of Sir Wira Gardiner and Shad Rolleston for the Applicant sets out in detail the engagement and consultation with Māori that has taken place over the past five years. The level of engagement between the Applicant team and owners and local Māori has been substantial and, in my experience, is without precedent. Conclusion on Assessment of Effects 6.61 I have identified that adverse effects will or have the potential to occur, particularly: (a) (b) (c) (d) Effects of contaminants and ecological impacts; Effects on the natural character and landscape and feature attributes of the Reef; Human health effects; and Cultural effects I am of the view the effects associated with contaminants and wreck / debris movement can be appropriately managed through the Proposed Consent Conditions and the processes they prescribe.

22 6.63 I do not consider that the only, or the best, way to address cultural effects, or recognise and provide for the relationship of tangata whenua with Ōtāiti, is to decline the Proposal. I consider that the suite of measures proposed, as well as the comprehensive engagement process undertaken by the Applicant, do recognise and provide for that relationship and other than minor amendments I do not consider anything further is required. 7. STATUTORY CONSIDERATIONS Resource Management Act Section The actual and potential effects on the environment of the Proposal have been considered above in accordance with section 104(1)(a). 7.2 Attachment A to this evidence contains a full assessment of the Proposal against the relevant sections of the RMA and the objectives and policies of the national and regional policy and planning framework in accordance with section 104(1)(b). This section summarises my overall conclusions in relation to each of the key documents. 7.3 I note that since the last hearing the Proposed Coastal Environment Plan process has progressed significantly and almost all appeals have been resolved. Therefore I consider that in general the provisions of the Proposed Plan should be given more weight. There are three relevant topics within that Plan that are yet to be resolved, and those include Natural Heritage (Policies NH 1, 4, 5 and Rule SO 10), Iwi Resource Management, and the Motiti Rohe Moana Trust appeal seeking marine spatial planning around Motiti and including Astrolabe Reef. The latter appeal is not intended to affect the Rena consent application (as per a Minute of the Court dated 20 September 2016). 7.4 The Rena situation is a unique one and the planning framework is not drafted with this type of situation in mind. It is therefore unsurprising that it does not naturally fit within that framework. Unlike most consent applications we are not dealing with a prospective development or activity. We are dealing with the aftermath of a shipwreck and how it should be managed into the future. 7.5 For this reason I concur with the evidence of Keith Frentz that, while the policy and planning framework needs to be considered under section 104, there is little guidance to be gleaned from it in terms of dealing with the aftermath of maritime casualties and a practical, pragmatic, and real-world approach is the best approach to take At paragraph 63.

23 The Resource Management (Marine Pollution) Regulations I have considered the Resource Management (Marine Pollution) Regulations 1998 ( Regulations ). The Regulations apply to the Proposal in respect of the abandonment of the wreck and the associated debris. These Regulations require an application to include certain details and the consent authority to consider additional matters, set out in Part 2 of the Regulations. The Application provides comprehensive assessments that sufficiently address the matters outlined in those regulations. RMA, Policy and Planning Documents 7.7 The NZCPS, RPS, and operative and proposed Regional Coastal Environment Plans, contain a number of similar themes and directions in their objectives and policies. In turn, these reflect the matters set out in Part 2 of the Act. In Attachment A I assess the Proposal against what I consider to be the relevant provisions of all of those documents. I summarise those conclusions against the key themes. 7.8 The policy and planning documents give effect to the various provisions in Part 2 of the Act (ie sections 6, 7 and 8). Biological Diversity and Ecosystems 7.9 A number of the provisions in these documents require safeguarding of coastal ecosystems and their functioning and life-supporting capacity, protection of areas of indigenous biological diversity, and maintenance and enhancement of coastal water quality. These reflect and expand upon the matters set out in section 6(c), 7(aa), and 7(d) of the RMA The Reef has been identified in the proposed Regional Coastal Environment Plan as an Indigenous Biological Diversity Area A in accordance with the NZCPS due to its uncommon ecosystem, having both tropical fish and a strong pelagic school fish component and is identified as an area of significant conservation value in the operative coastal plan for the same reasons The evidence is that the Proposal is not having, and is not expected to have, an adverse impact on the IBDA A attributes of the reef There remains a localised adverse effect on ecology due to the presence of copper and TBT, and the wreck itself, but this is not considered to be significant overall due to its localised nature. In that localised area, especially for example under the wreck structure, the effect on the reef system and ecology is significant. The wreck and surrounds are being recolonized, suggesting the ecology is recovering. The evidence suggests that it