TRANSCRIPT OF PROCEEDINGS ENVIRONMENTAL PROTECTION AUTHORITY HEARING. Trans-Tasman Resources Limited Marine Consent Application

Transcription

1 TRANSCRIPT OF PROCEEDINGS ENVIRONMENTAL PROTECTION AUTHORITY HEARING Trans-Tasman Resources Limited Marine Consent Application HEARING at LEVEL 4 MEMBERS LOUNGE, THE WESTPAC STADIUM FUNCTION CENTRE, WATERLOO QUAY, PIPITEA, WELLINGTON on 16 February 17 DECISION-MAKING COMMITTEE: Mr Alick Shaw (Chairperson) Mr Kevin Thompson (EPA Board Representative) Ms Sharon McGarry (Committee Member) Mr Gerry Te Kapa Coates (Committee Member)

2 Hearing Proceedings Day 01 Thursday 16 February 17 Time Name Representing Topic Documents Submitted / Presented 9.00 am Peter and June Jackson Te Ātiawa 9. am Morning tea break Mihi Whakatau (Māori welcome) 9.48 am Chairperson EPA Introductions and opening comments.06 am Mike Holm TTRL Opening representation Opening Legal Representations Casebook for TTRL Transcript Ref. Page no's. am Chairperson Question am Mike Holm TTRL Opening statements continued.4 am Chairperson EPA Question am Mike Holm TTRL Opening representation continued am Morning break 11. am Mike Holm TTRL Opening representation continued pm DMC DMC Questions pm Lunch break

3 1.34 pm Mike Holm Continued pm Duncan Currie KASM and Greenpeace Opening representation Opening submission for KASM and Greenpeace 2 Judgment of Allen J in the matter of Frasers Papamoa Ltd v Tauranga City Council 2. pm DMC Questions pm Robert Makgill The Fisheries Submitters Opening representation Opening submissions of legal counsel pm Afternoon tea 3.0 pm Robert Makgill The Fisheries Submitters 4.27 pm Peter Anderson Royal Forest & Bird Protection Society of NZ Ltd. 4.8 pm Bronwyn Carruthers Origin Energy Resources Kupe NZ Ltd Environmental Management Needs for Exploration for Deep Sea Minerals Continued 94 Opening representation Opening submission Opening representation Opening representation for Origin Energy Resource Kupe NZ Ltd on behalf of the Kupe Joint Venture parties.24 pm DMC Questions 1 116

4 .33 pm Adjourned 128

5 MS IOANE: MS POLIN: MS HEWETT: MR HOLM: MR HOLM: MR DAWSON: MR CURRIE: Page [9.48 am] Good morning and welcome to the first day of this hearing on the application by TTRL for ironsands mining in the South Taranaki Bight. My name is Alick Shaw. I chair this Decision-Making Committee and I will come back to our duties and the process that we are going to be going through shortly. In the meantime I would just ask the people in the room, as I will do from time to time, to introduce themselves and their connection with the hearing. I think it is important that we know who is who in zoo, as they say. So for me, that's it for the moment. I shall come back to you shortly. We will begin with the staff who are supporting us here and then move to those who are seated at the desks, those in the gallery, and come back to the DMC. Good morning. As you know, my name is Tuf Ioane. Good morning. My name is Saioa Polin. And I am Gen Hewett. Those folk all work for the EPA. There are three others there who are simply there in a technical role, recording role, recording and assisting us. Thank you, Mr Chairman. My name is Mike Holm. With me is Vicki Morrison-Shaw. Representing TTRL. In the case of counsel, or indeed experts, if you could acknowledge on whose behalf you might be appearing. TTR, sir. Thank you. [9.0am] Good morning. My name is Peter Dawson and with me is Renee Hunt. We are acting for the fisheries' submitters. Good morning, board. My name is Duncan Currie. I represent both KASM, Kiwis Against Seabed Mining, and Greenpeace, New Zealand,

6 MR RANDALL: Page 6 sir. With me is Phil McCabe, the chairman of KASM and Ruby Haazen will be with me very soon, sir. Good morning, sir, and Committee members. Kiri mai tātou katoa. Dave Randall. With me, Celia Haden and Michael Allan. We are counsel assisting the Committee. MS CARRUTHERS: Good morning. Ms Carruthers with Mr Owen for Origin Energy Resources Kupe New Zealand Limited. Thank you. Okay. Good I just remind you, on the question of turning microphones on; very important as Mr Trump discovered during the election campaign, it is equally important to turn them off. Okay, folk in the gallery space; start from the end. MR EGGERS: MR MITCHELL: MR THOMPSON: Good morning. Alan Eggers, Executive Chairman, TTRL. Good morning, Mr Chairman, members of the panel. My name is Phil Mitchell, planning consultant for TTRL. Good morning. Shawn Thompson; project director for TTRL. MR WALDEN: Kia ora tātou. Tokatumoana Walden, Executive Relationship Manager, TTRL. 4 MR FAITHFULL: MR GOVIER: MR BROWN: MS PLANK: MR CASTLE: MS SANDERS: MR BARCLAY: MR JONES: MS GREGORY: Good morning. Luke Faithfull, planning consultant for TTRL. Good morning. Dean Govier, environmental consultant with TTRL. Good morning. Matthew Brown, geologies for TTRL. Ata marie tātou. I am Gemma. I am a roll clerk with the EPA. Good morning. I am Chris Castle. I am Chief Executive Chairman, Rock Phosphate, here as a member of the public. I am Linda Sanders. I am Joshua Barclay. I am here representing Sport Fishing Council and LegaSea. Mōrena tātou. I am Doug Jones, general manager Māori at the EPA. Tēnā koutou katoa. Erica Gregory, principle advisor with the EPA.

7 Page 7 MS SINCLAIR-TAIKATO: Mōrena. Sarah Sinclair-Taikato. I am here with my mother, Patricia Sinclair. Until last week I was a home owner in Patea and I am supporting KASM. MR HURST: MR FRANZ: MR O'FLAHERTY: MS QUAYLE: MR INGLEBATE: MS CORRIGAN: MS GODSELL: Hello. I am David Hurst. I'm here to represent people from Waitotara, South Taranaki, at Waiini Beach. I am Timo Franz, here to support KASM. Good morning. Thomas O'Flaherty, here from the Ministry for the Environment. I am an analyst. Good morning. I am Siobhan Quayle, general manager climate, land and oceans, with the EPA. Kia ora tātou. Nick Inglebate, a member of the public. Kia ora. Helen Corrigan. Principle communications advisor at the Environmental Protection Authority. Kia ora. I am Kate Godsell, Radio New Zealand, and this is my intern, Edward O'Driscoll. MR PULLAR-STRECKER: Tom Pullar-Strecker, Fairfax Media. MS HOWARD: Rebecca Howard from Business Desk. 4 MR TUCKER: MR MOCK: MS JOHNSTON: MR CROZIER: MR PATRICK: MR NETT(?): Jim Tucker from Live magazine in New Plymouth. Trevor Mock, here. Kia ora. Angie(?) Johnstone from the MfE. Paul Crozier, senior policy analyst at the Ministry for the Environment. Good morning. Mike Patrick, appearing on behalf of Trans Tasman Resources. Ata marie tātou. Vinnie(?) Nett from Straterra, which is the minerals industry peak body. For those of you who unfamiliar with, or less familiar with, the process we are going through I want to make a few introductory comments. [9. am] I spoke with counsel and other people who are leading the interests of some parties who are otherwise represented here today. I spoke with

8 Page 8 them last week, last Friday, about some of the issues and the way in which we intend to see this hearing conducted. I am not going to go through those things again, but I do want to talk about the principles that underpin our approach. I have just realised I have not introduced my colleagues so I am going to pause there before I get carried away and forget it entirely. MR TE KAPA COATES: Kia ora tātou. My name is Gerry Te Kapa Coates. It always pays to obey the instructions of the chair. Gerry Te Kapa Coates and I am a member of the panel. I'm from Ngāi Tahu. 4 MS MCGARRY: MR THOMPSON:. Good morning. I am Sharon McGarry. I am an independent hearings consultant based in Christchurch. Kevin Thompson, deputy chair of EPA and a member of this Committee. The people who have just introduced themselves along with me, both theoretically and in practical terms, are probably in a small minority in this room, not just in terms of the fact that we are charged with making a decision, but the fact is that at the moment we would be in the minority who have not got a firm view as to the decision that should be made. It is very important that people understand that. It is not just a convenience that leads me to say that but along with other members of the public who are represented here, and counsel, and experts, we have been faced over the months with a huge amount of material to read and to come to terms with but we are not there yet by a long stretch of the imagination and it will not be until this hearing is over and until this Committee has conferred and gone through, I hope in meticulous detail, the material that is front of us in writing and the material that will be adduced by way of evidence and conversation during this hearing that we will be in a position to make our decision step by step. The last step will be a decision as to whether or not consent will be granted or declined. It is really important that members of the public here understand that. We haven't made our minds up in any way, shape or form. We are not a party to the application. We have no view, except in respect of ensuring that decent process is followed. If people don't like the law, too bad. Our job is to apply the law as it is written today. It is not our job to anticipate what the law might look like in years' time, years' time or next year. It is not our job to think what we think is right. It is not for us to give vent to our ambitions, our aspirations, or indeed our prejudices. We cannot do that. And if you people think about it - and I am speaking here to members of the public - if you think about that, you know that the crucial part of this is the application of the rule of law. It has to be that way. It's important you understand, no matter how passionately you

9 Page 9 4 think something, or how often you say it, or how many people have said it, that is not the issue. We will not be making our decision on the basis of petition or a popularity contest. It is of no consequence whatsoever how many people have submitted in opposition and how many people have submitted in support. That is not the point. The point is the evidence which goes to the law that we have to apply. That's what's important: the information that ordinary members of the public and experts are able to give us to take us to a point where we can make a conclusion. But volume and repetition go nowhere. In other words, the rule of the game is the rule that we, all of us, should try and hope that we live under for our lives, predictability. That doesn't mean predictability of outcome; it means predictability of the circumstance in which you get to argue your case. The clamour of large numbers is entirely beside the point. Of course we take notice, of course we are aware of the passion that people feel around these issues, but in the end it is the information and the applicability of the law that is the key. On that note I would really ask people as the find their way through hearing and becomes their time to make a contribution, that they accept the rights of others; that they accept the fact we need to conduct these proceedings with a minimum of heat and maximum of light. Accusations of bad faith are incredibly unimportant except in raising the temperature and not contributing to a sensible conversation. [.00 am] In one sense the work of the hearing has already begun. Experts have already gathered to discuss and isolate those things upon which they agree and which they don't so that we have better information, so that we can work those things that remain in dispute. So, ladies and gentlemen, I am not going to go any further than that other than to say we can't talk to you except in this circumstance that we are in at the moment as members of the DMC. If you have issues you wish to raise with us, talk to the staff and they will make sure that we are advised. If counsel in particular think it is time for an adjournment, that something has arisen that causes them to want to take some counsel among themselves, tell us through the staff and we will decide whether or not that's appropriate. If we are looking for advice, we will adjourn from time to time to take advice and that will particularly revolve around issues of the law. We are at this table, none of us lawyers. Some people would say that's a deficiency; understandably, I don't think so. We've got plenty of people to tell us the law. In terms of members of the public, let me say this: this is an open hearing. So if people arrive here and want to make clear - I think some people said, "I am here to support KASM" - good on you. If that's reflected at some point in a larger and more concentrated gathering,

10 Page MR HOLM: MR HOLM: MR HOLM: that's fine. You have got a perfect right to do it; it's an open hearing but - and this is the only but - we are not going to have proceedings disrupted. So could I honestly say to people who may be in a situation where they can influence events, and not everybody will be able to always. If something is planned, it would be a courtesy - observed or not, it's not going to be the big point - if we know about it - by "we" I mean the staff - so that we don't have a situation where perhaps security misunderstands things and don't allow the continuation of this open environment in which this hearing is to be conducted. I'm not saying that that's compulsory; of course not. We live in a political world as well as a process world and the opportunity for theatre is an important part of that process. I know that perfectly well and those of you who know my history, would know why I know it perfectly well. [.0 am] Anyway, that's all I've got to say. I want to thank you all for coming and I hope that all of you have access, or have seen, and understand what is going to happen first up. We're going to begin at the beginning and the beginning of this process is the application. Then we are going to move through the major part, through the parties that are represented or have indicated they wish to make an opening statement about the overall evidence and material that they are going to submit, but we begin as we must with the applicant and I invite you, Mr Holm, to begin your opening statement. This will run, incidentally, probably, until after lunch; that is the time set aside. You are allowed to pause, of course, but we indeed may need some too. Mr Holm, welcome. Thank you, Ms Shaw, as well. Thank you very much, Mr Chairman. Sir, I have written submissions here, copies. Do you propose to go through those verbatim, Mr Holm? Yes, sir. I just wanted to know. That's fine. I have structured them in a way to give you a total overview of the application, if that's helpful. I won't read all of it, where there are lists

11 4 MR HOLM: MR HOLM: MR CURRIE: MR HOLM: Page 11 of things that are self-evident, and I will endeavour to move quickly through quotes and that sort of thing. I should say that what Mr Holm has told us here is also precisely what we would expect from other counsel at this stage. Okay. Mr Holm. I also have a casebook here, sir, which we will give to staff. If others wish to see that casebook, they can do so; they can talk to staff and it will be made available to them, casebook being cases that are referenced in the applicant's submissions as authority. Over to you, sir. Thank you very much, Mr Chairman and members of the Committee. If I could ask you to turn to page of the submissions, where I start with an overview, which I have headed, "Context and Perspective". I am just trying to find the casebook so we know what is in there. Members of the Committee, New Zealand has the fourth largest exclusive economic zone in the world, roughly equivalent in size to the landmass of Australia. We have attached a map demonstrating the vast extent of that economic zone. While future resource development will undoubtedly occur within this zone, it is more likely, given the size of the zone, that vast areas will remain untouched. The evidence from Trans Tasman Resources Limited confirms that the ironsand resource of the west coast of the North Island, including within the South Taranaki Bight, is world class, with enormous and currently untapped economic benefit for New Zealand. The importance of this resource is underscored by ongoing research work TTR is undertaking with Callahan Innovation, and I should add there, sir, the Ministry of Business, Innovation and Employment, MBIE. My submission, sir, is that it is important from the outset to bring context and perspective to this particular marine consent application. TTR holds a mining permit of some 66 square kilometres within the exclusive economic zone, some 22 kilometres offshore at its closest point to land. To put this permit area into context, it is a tiny fraction, less than 1 per cent of the South Taranaki Bight. Within the permit area a total of only approximately square kilometres would be mined each year, I note there, sir, approximately 0.3 per cent of the South Taranaki Bight, at a rate of around about 0.4 square kilometers per month. Thus, over a typical month an area of some 900 x 600 metres is to be mined. This involves removal of sand to varying depths but generally to an average of metres and to a maximum of 11 metres,

12 Page 12 followed by the re-deposition of that de-ored sand in the recently dredged area. I will explain a little further. 4 [: am] There is therefore no conceivable way that dredging operations will ever take place over the entire 66 square kilometres area of the permit. As noted, the sand extraction takes place in a very small area at any one time, followed, within hours, by the return of the de-ored sand to the dredged areas outside of the initial sequence where the re-deposition will take place immediately adjacent to the extraction area. As discussed in the evidence, the sand is mined by a very slow-moving crawler, which is tethered to a purpose-built integrated mining vessel from which it is controlled remotely. It moves slowly along the sea floor, vacuuming up sand and seawater and pumping it to the mining vessel. On the mining vessel, iron ore is magnetically separated from the de-watered sand, the clean, de-ored sand, approximately 90 per cent of the sand originally pumped to the vessel, is then redeposited in the empty lane or, I would add there, sir, trench, created by the dredging, relatively close to where the sand has been removed. This is achieved by means of a pipe extending from the integrated mining vessel to approximately 4 metres above the sea floor. The evidence will demonstrate that the vast majority of the redeposited de-ored sand will settle on the seabed and effectively fill in the areas previously dredged by the crawler. Some of the finer sediments within the redeposited sand will form a plume which will drift, or move away, from the dredging area depending on tides, ocean currents and general weather conditions. It should be noted that the magnetic de-oreing of sand aboard the integrated mining vessel does not involve any chemical additives or processes, only sand and seawater are present and that is all that is returned to the ocean and the seabed. A considerable amount of work has gone in to analysing the characteristics and behaviour of the plume in a physical sense as well as careful expert assessment of the potential environmental effects of that plume. These assessments confirm that the potential effects are negligible on coastal or inshore marine life, resources, ecosystems or other high-value sites such as the North and South Traps, and the Grand Bank. A key part of assessing the potential environmental effects of the plume has been to assess the existing marine environment in which the plume will move and/or potentially affect. It is significant to note that the marine environment in the areas to be dredged is a high-energy environment with dynamic physical processes. Sediment loads with significantly higher concentrations than in the plume are a regular feature of the marine environment, in particular closer to the coast. Indeed, within - kilometres of the coast, the sediment and the plume where present will be largely indistinguishable from the far higher background sediment level that already occur and will have no

13 Page 13 influence or discernible impact on the marine environment of the coastal water or marine life. TTR has undertaken significant new work, outlined in the evidence, to substantially improve knowledge of both the existing environment and the extent of the potential effects arising from the sand dredging operations. This work has resulted in an improved understanding of the levels of effects and better, more focused, management strategies, monitoring and conditions. TTR's expert witnesses have confirmed there is sufficient information to understand both the existing environment and the potential effects of the proposal. In our submission, no additional information is needed or warranted to enable robust conclusions to be drawn and appropriate consent conditions imposed. Of significance is that while further baseline monitoring is proposed following grant of any consent, the purpose of this monitoring is to establish parameters for compliance monitoring purposes. It is not being used as a proxy for establishing the existing environment or potential effects. That work has been done. [. am] 4 Clearly the task for this DMC is to determine whether, taking into account all of the relevant considerations under the EEZ Act, consent should be granted and, if so, what conditions should apply. TTR will call evidence, and has filed evidence, that demonstrates the effects of the proposal on both the marine environment and existing interests is generally very small to negligible. The only area where effects may be greater than minor is in the relatively small area of seabed directly impacted by the mining or dredging. These effects, including that of the sediment plume, will be transient and temporary, with areas starting to recover as soon as mining has been completed in those areas. In TTR's submission, there is no credible expert evidence from other parties of any effects which would warrant declining consent. The extensive qualifications and experience of TTR's witnesses, in our submission warrant considerable weight. The additional work undertaken by the expert team has specifically addressed the identified shortcomings in the first, earlier, application and a comprehensive set of conditions, which is appropriate to manage environmental effects, has been developed in consultation with a wide variety of interested parties. I would just insert there, sir, notably the consultation on conditions started well before the application was even filed, so there was a very extensive process discussing conditions, notably the Department of

14 Page 14 Conservation and Sandford Limited, have been satisfied by those conditions. Turning, sir, to the background. TTR is a privately owned, majority controlled and managed, New Zealand company, established in 07 to explore and develop the ironsand deposit on the west coast of the North Island. In November 13, TTR applied to the EPA for marine and discharge consents to undertake the project. This application was refused, largely due to uncertainty around the effects of the proposal. Over the past two or so years, TTR has undertaken significant additional work to address these concerns and has refined and updated its application. This current application was lodged in August 16 and notified in September. Sir, I just show, in figure 1, the application area. TTR proposes to extract up to 0 million tonnes of sediment per year, targeting, obviously, the recovery of ironsands. As I noted earlier, of the extracted material approximately per cent will be processed into iron ore concentrate for export. As also noted earlier, the remaining de-ored sediment will be redeposited on the seabed within the previously evacuated area of a controlled discharge system. The term of the consent applied for is noted: years. 4 TTR has applied for marine consents and marine discharge consents for the proposal and we list, in paragraph 28, sir, all of the various activities. These were obviously set out in the application and the accompanying environmental impact assessment, so I won't read through that list. Just note, in paragraph, that the context for the marine consent application is that TTR currently holds a minerals mining permit granted under the Crown Minerals Act. [. am] Turning, sir, to the legal framework and the purpose of the EEZ Act. The explicit purpose of the Act is set out in section and has two key components: to promote the sustainable management of the natural resources of the EEZ and continental shelf and, secondly, to protect the environment by regulating or prohibiting discharges of harmful substances, etc. Sustainable management is defined - and I won't read the section, sir, but just note the emphasis on providing for economic wellbeing while also safeguarding environmental factors. It is important to note that this definition is significantly different from the one in the Resource Management Act. The focus under the EEZ Act is on enabling

15 Page economic wellbeing. There is no mention of social and cultural wellbeing, nor of health and safety. We discuss the significance of this further in these submissions. 4 Natural resources is defined as including the seabed, subsoil, water, air, minerals, energy, and all forms of organisms, and environment, as the natural environment including ecosystems and their constituent part in all natural resources. The sections listed in paragraph 36, which I won't read, restrict certain activities from being undertaken unless they are authorised under the Act. Paragraph 37: in order to achieve the Act's purpose, decision makers are required to take into account the criteria and apply the information principles set out in the Act. There is no explicit hierarchy in the list of matters that the DMC must consider. However, the inclusion of the words "the importance of protecting" indicates that a particular emphasis should be given to the protection of biological diversity, the integrity of marine species, ecosystems and processes, and the habitats of threatened species. I note there, such an approach is consistent with that taken by the DMC in the STOS Māui decision. As explained further below, and set out in the evidence, TTR's proposal does not threaten, or put at risk, any such species, ecosystems, processes, or habitats. The information principles set out in section 61 require the DMC to make full use of its powers, base its decision on the best available information, and take into account any uncertainty or inadequacy in the information available. Where information is uncertain or inadequate, the DMC must favour caution and environmental protection and must, if consent is likely to be refused, first consider whether an adapted management approach would allow the activity to be undertaken. We discuss the adapted management approach further in these submissions. The best available information: the Act requires the DMC to make its decision based on the best available information. Importantly, and contrary to the thrust of a number of submissions, this obligation does not, in our submission, mean all possible information. As is made clear in the definition, the best available information is the best information, which in the particular circumstances is available without unreasonable cost, effort and time. Turning to uncertainty or inadequacy: the phrase uncertainty or inadequacy is not defined. The ordinary meaning of uncertainty is not known, reliable, or definite; not completely known or sure. In this context synonyms such unreliability or unpredictability are also useful. The ordinary meaning of inadequate means lacking the quality or quantity required; insufficient. These words then need to be considered

16 Page 16 4 in the statutory context. As noted above, in addition to considering uncertainty and inadequacy, the decision maker must take into account the best available information. In TTR's submission, uncertainty or inadequacy does not mean that every single aspect and effect of the project has to be known with 0 per cent confidence. If that was the case, then no consents would ever be granted. Instead, what is required is that the information be sufficient and adequate to identify the type of activity being proposed, the likely effects, and the measures being proposed to avoid, remedy, or mitigate any adverse effects. Taking into account this meaning, the issue for the DMC is whether there is any uncertainty or inadequacy in the information available. Sir, in paragraph 0 I just enclose a quote from the previous DMC decision, noting that they thought the application was premature. In other words, more information was needed because not enough was available on the key considerations. Paragraph 1: TTR's position is that significant new work - and it is outlined in the evidence - has now been completed to address the perceived gaps in the last application. [. am] Examples: there is now a comprehensive data set describing the existing environment; additional work has been carried out to more fully understand the effects of the plume and the activity on the existing environment; further consultation and engagement has occurred with stakeholders, as it outline in the evidence. While some submitters still maintain that not enough has been done and that the baseline monitoring proposed should have been undertaken pre-lodgement, TTR disagrees. The purpose of a baseline environmental monitoring plan is not to establish the existing environment or the level of predicted effects. That work has been done. Instead, the purpose of such monitoring is to establish proper baseline data at particular sites, against which effects will be measured. In other words, the monitoring is not being used to establish these levels but to ground-truth them. While more monitoring can always be done, the key issue is whether there is adequate information in order to be able to accurately predict the likely effects. The expert evidence of TTR confirms that there is adequate information to make an informed assessment about potential effects. Accordingly, in our submission, there is no uncertainty, there is no inadequacy, in the information before the DMC. Favouring caution: the DMC is required to favour caution and environmental protection where, and only where, information is uncertain or inadequate. The phrase "favour caution and protection" is not defined. As noted above, the environment is defined as the natural environment, including ecosystems, the constituent parts, and all natural resources of the zone. The ordinary meaning of "favour caution

17 Page 17 and protection": favour, approval, liking or preferential treatment, work to the advantage of. Caution: care taken to avoid danger or mistakes, warn. Protection: the act of protecting, preserving, keeping safe from harm or injury. So, in other words, to favour caution and environmental protection is to prefer, in our submission, a careful approach which keeps the resources of the EEZ safe from harm. That was the ordinary meaning of these terms, which was to be preferred, as made clear by the Honourable Nick Smith, the Minister for the Environment, during the debate on the Bill. I won't read the quote, sir, but it's an emphasis on plain language to be interpreted in a practical and sensible manner. However, it is crucial to remember that the need to favour caution and protection only applies where there is uncertainty or inadequacy, whereas here there is no uncertainty or inadequacy in the information, the approach does not need to apply. Moving from that domestic consideration to international obligations. International instruments, such as MARPOL and the London Convention, are only binding to the extent they are incorporated into New Zealand's domestic legislation. Section 11 of the EEZ Act indicates that Parliament has incorporated New Zealand's international obligations within the Act itself. In order for the DMC to consider the specific provisions of an international instrument, there would need to be clear evidence that it set out relevant and authoritative guidance on one of the matters set out in section 9, such as international best practice. In the absence of such evidence, the EEZ Act is considered to give effect to all relevant international obligations. This approach is consistent with the supplementary order paper explaining the final changes to the section. I will just read the underlined piece: 4 "A decision-maker does not need to look beyond the EEZ Act to be sure that he or she is complying with these international obligations." It is also consistent with the approach taken by the EPA in all six of its previous EEZ decisions, which considered international obligations, for example in the Māui decision, and I will not read the full quote, sir, but: "The relevant obligations of the Crown are expressly encapsulated by Parliament in the EEZ Act and do not require additional consideration to be applied by the EPA to the decision-making criteria and information in the Act." Moving from international obligations to the concept of the precautionary principle. The precautionary principle or approach is a

18 Page 18 concept which stems from international agreements and treaties on environmental matters such as the Rio Declaration and the Kyoto Protocol. There is no one definitive meaning given to the terms "precautionary principle" or "precautionary approach". Indeed, this legal uncertainty was one of the key reasons why Parliament ultimately decided not to include this term in the EEZ Act. Again, as explained by the Honourable Nick Smith, if you look through court decisions on those that have chosen to put that precautionary principle, it creates huge uncertainty. As an international concept, the approach only applies to the extent it is incorporated into New Zealand law. The EEZ Act does not refer to the precautionary principle or approach. Instead, as noted above, it uses the phrase "favour caution and environmental protection where and only where information is uncertain or inadequate." In our submission, the precautionary approach/principle is not a relevant matter for the DMC to consider. [. am] MR HOLM: Can I just ask you to pause there for a moment, Mr Holm? Certainly, sir. Mr Holm, the question I have got, I want to ask now, because you're dealing with this question of caution and precautionary principles, which are, I think, oftentimes confused by people who are looking at

19 Page 19 this legislation and trying to understand it. But there's another matter, I think, which goes to this question, and you say in your paragraph 9: "In other words, to favour caution and environmental protection is to prefer a careful approach which keeps the natural EEZ resources safe from harm." I'm sorry to adopt the American pronunciation, but it just flows more easily, I've got to tell you; just hearing it too often. Is that the extent of the natural resources that we've got to be careful or cautious about protecting, in your submission? MR HOLM: There are a number of other criteria, sir, which broaden -- So, this is not an exclusive -- 4 MR HOLM: MR HOLM: MR HOLM: No, no, I'm not suggesting for a minute that's exclusive. That's all I needed to hear, Mr Holm. I just wanted to be clear about that. No, there are other criteria, sir. Fine. I'll come to some of those in due course. Coming to the Treaty of Waitangi, sir, on page 16, paragraph 68, 6 and 12 of the Act sets out how the Treaty principles have been given effect to through the provisions of the Act. Importantly, section 12 does not impose any express requirement on the DMC to take into account the principles of the Treaty when making decisions on applications. As we discuss below, it is important to remember the Act is a very different regime to the Resource Management Act, and the protections and considerations in the RMA related to the Treaty and Maori interests are not to be imported into the EEZ Act. Section 12 does however refer to the requirement for the DMC to take into account the effects on existing interests which includes, in our submission, the interests the person has in the Treaty of Waitangi settlement, the interests a person has in protected customary rights or customary marine title. It may also include cultural values associated with any lawfully established existing activity, such as rights of access, navigation and fishing under the section referred to. We discuss the

20 Page scope of existing interests and impacts on those interests later in these submissions. [. am] The next section, sir, is really just a discussion, and I won't read the relevant paragraphs. It is simply a discussion of how relevant is it for you to consider previous DMC decisions. We are saying there's no obligation to do that but there are good reasons to carefully consider them and, I suppose in shorthand, give some respect to previous decisions that have been taken. But they are certainly not binding on this Committee. I will turn from there, sir, to the consultation on page 18. A number of submitters have claimed that the consultation undertaken by TTR has been too narrowly focused, insufficient and/or inadequate. It is important to note that consultation is not expressly required under the Act, however TTR accepts that consultation with potentially affected parties is helpful in ensuring that all relevant effects are identified and addressed. The leading case on consultation principles is cited here, and I would simply note the underlined part of that decision we quote in the middle: "Consulting involves the statement of a proposal not yet finally decided upon, listening to what others have to say, considering their responses and deciding what will be done." To the bottom of the page, underlined: "Beyond that, there are no universal requirements as to form. Any manner of oral or written interchange which allows adequate expression and consideration of views will suffice. Nor is there any universal requirement as to duration. In some situations, adequate consultation could take place in a telephone call; in others it may require years of formal meetings, and generalities are not helpful." The application of these principles in an RMA context was discussed in the case cited. I'll read through: 4 "Firstly, there is no universal requirement as to the form. The purpose of consultation is to afford an opportunity for Maori to give their views as to how the proposal would affect their cultural interests. Consultation relies on both parties participating." A significant principle. A cultural impact assessment can be a valuable part of the consultation process and, to be more than window dressing, the outcome must influence the proposal. It is also important to note

21 Page 21 that consultation does not constitute a right of veto. I won't read the quote, sir; it speaks for itself. 4 The difficulty clearly arises when a consultee refuses to engage. Contrary to the view expressed in the Ngā Kaihautū Report, it is, in effect, mandatory. There is no statutory basis for that view. TTR cannot require other parties to engage with it. TTR can only make requests, provide opportunities and information and leave its door open for future engagement. Such an approach is consistent with the best practice guidelines that Ngāti Ruanui produced and refer to in their evidence. Further, as Mr Walden's evidence will make clear, this is the approach TTR took to any parties who did not wish to engage or who only wished to have limited engagement. Turning to the broader consultation. The evidence shows there has been extensive consultation with a wide variety of stakeholders beginning well before the current application was lodged with the EPA. The comprehensive set of proposed conditions to be attached to the marine consent form part of that consultation process. What we're saying, sir, is those conditions, a comprehensive set of conditions, formed an essential part of the consultation well before the application was lodged. [: am] Turning to commercial fishing, some commercial fishing interests do not appear to have been satisfied with either the information provided or the proposed conditions. This contrasts with Sandford Ltd. TTR is very open to continuing to consult in an endeavour to find agreement. It is relevant to note that there is no credible expert evidence of an actual negative impact on fish or fisheries created by dredging the small monthly and annual area within the permit. Commercial fishing interests own quota, which is not the same as owning or controlling areas of the seabed or ocean, which may be legitimately used by others, subject to EEZ regulation. Fisheries, while a very important existing interest, hold no exclusive domain. Origin Energy. Consultation with Origin, the owners of the Kupe Rig - which is in the vicinity of the marine consent mining area - is ongoing and constructive discussions have been held, with a view to agreeing appropriate conditions which will be provided to the DMC for consideration later in the hearing. The Origin Energy concerns mostly revolve around potential safety dangers and risks to the existing Coupé Rig and primarily, sir, from the ships that will be involved in the TTR mining operation. If I could just insert here, we have had discussions on conditions. We provided a latest set of conditions to Origin's

22 Page 22 advisors yesterday and we are very hopeful that, by the time we have our experts talk about this, they will have come to an agreement. 4 MR HOLM: MR HOLM: Ngāti Ruanui. Consultation and efforts to try and consult with Ngāti Ruanui were not, as noted in evidence, successful. TTR continues to remain open to consultation and recognises the importance and mana of Ngāti Ruanui. As noted in the evidence of Mr Mikaere, this lack of engagement may be as a result of a strongly-held position of opposition. It may also be a strategy to seek to ensure that TTR's marine consent can be argued to be incomplete without a Ngāti Ruanui cultural impact assessment. If this is the strategy, then it is misplaced. It is clearly not obligatory to advance a marine consent application with a cultural impact assessment prepared by the iwi of mana whenua. TTR continues to hope that goodwill can prevail and a good working relationship is able to develop. In the meantime, TTR, out of respect for Maori issues, had no choice but to seek advice from others with experience. We first went to Mr Tahu Potiki from Ngāi Tahu, who is very experienced in these matters, and he provided evidence. Unfortunately, due to health issues, we had to bring in Mr Buddy Mikaere to take over that role. It is accepted that this is not ideal, but it is a situation beyond TTR's control, given the flat refusal of Ngāti Ruanui to engage. Notwithstanding the unwillingness to engage, the proposed conditions include comprehensive engagement provisions which acknowledge the status of mana whenua, but which also recognise that engagement requires a two-way participation. These conditions were provided to Ngāti Ruanui in both April and May 16, well before lodging the application. [.4 am] Mr Holm, I am going to ask you to pause there again, to ask another question related to the general question of consultation and its impact on the development of the proposal. Certainly, sir. I am not going to talk about the Ngāti Ruanui circumstance, because that is particular. You talk about the fact that, during consultation, conditions are developed, amended, introduced, and is that iterative progress able to be demonstrated by the applicant in terms of that period during consultation, how the impact can be demonstrated in respect of the final application? Yes, sir, it can be, and it will be by Dr Mitchell, who carried the responsibility from the outset for developing that package, consulting

23 MR HOLM: MR HOLM: MR HOLM: Page 23 with all the various interests, evolving conditions, back and forward, back and forward. A lot of work went in, and he will speak to that -- He will tell the story? Because I think the narrative there is really something that we, all of us, have got to be interested in. Sir, he will do that, and also Mr Toka Walden will deal with the same topic, on the ground, so to speak, in Taranaki. I think the thrust of that evidence will be that there was a major programme of consultation well before the application was lodged, with a wide range of parties. That consultation went very well, was very productive, produced agreement on a comprehensive set of conditions, and there was only one party who did not want to engage, and I have covered that. The question of the NKTT report has been mentioned in this part of your submissions, Mr Holm. It may be that later on it would be appropriate to explain to the hearing as a whole the role that the NKTT plays in the overall assessment or the overall provision of advice to the Committee in respect of an application. That's not going to be today; I think it's pretty clear that the iwi issues are far more likely to be canvassed in detail when we move to New Plymouth. Yes, I think that's correct. But just to give you advice that it may be the case as we move forward we may find the need to hear from them. Okay? Thank you. I'm up to paragraph 92, sir, and we're dealing here with an overview of potential effects on the environment. It is accepted that recovery of ironsands will have some impact on the environment. However, as I noted right at the outset, it is important that these effects are considered in context. The section that follows draws on TTR evidence to outline the key effects, the magnitude of these effects, and how TTR proposes to manage them, and the number one issue, clearly, sir, is the plume. As outlined in evidence, the recovery of ironsands will produce a plume of suspended sediment both during the excavation process and on the release of the de-ored material back to the ocean floor. This is perhaps the key effect of the proposal, as the location, size and density of the plume has a number of potential flow-on ecological implications for other marine species and animals. However, it is very important to place this effect in context. As Dr James notes in his evidence, the South Taranaki Bight is a high-energy, dynamic environment, subject to a range of currents, waves and riverine inputs - in other words,

24 Page 24 sediment flowing down rivers - that already introduce high levels of suspended sediment into the marine environment. The suspended sediment concentrations in the plume and its spatial extent will depend on prevailing conditions in terms of current, wind speed and direction. It is important to note that the peaks will be shortterm, less than one week at high levels. The increases in suspended sediments beyond the immediate vicinity - that is more than 2 kilometres from the excavation redeposition site - will typically be less than 2 milligrams per litre with very rare periods over 2 milligrams which, as Dr James explains, is at a level that will not impact biota. This includes the high value inshore reef sites, the north and south traps, and the Graham Bank. [.0 am] The extraction process will mean most of the biota in the excavation area will be lost in the short-term, however as Dr James points out, the area impacted is small, less than square kilometres per year. There are no rare or unique species or assemblages present, the community will recover on a timescale of weeks to months for the dominant worm beds, and months to several years for larger, long-lived taxa. There will be a gradient of effect and recovery as the operation moves across the area. Dr James considers that the conditions are appropriate to ensure effects are no more than minor. I will read the quote, sir: 4 "A robust and comprehensive monitoring programme and set of conditions is proposed, with management responses if sediment limits are exceeded I consider the monitoring programme and conditions provide the confidence which will ensure effects are no more than minor in the region and as predicted." The approach embodied in the condition is no more than requiring compliance. Benthic and planktonic communities, the suspended solids concentrations, have the potential to affect primary production, microphytobenthos, benthic communities and zooplankton communities. An assessment of the effects on primary production has been undertaken following the previous marine consent application by a recognised world-leading authority, Dr Lawrence Cahoon, who concludes that the region-wide effects of ironsand extraction on primary producers will be indistinguishable from natural oceanographic variability. Dr Mark James was also engaged to provide further expert evaluation of these issues. I might just insert there, sir, compared to the previous application, the intimate involvement of Dr Cahoon and Dr James marks a very, very

25 Page big distinction from the previous application, and the level of information and assessment that they have been able to bring to bear puts it in a completely different category to the level of assessment done in the previous application. There are two sources of material that will deposit on the seabed and potentially have effects on the benthic communities. Material that has had the ironsand removed and is redeposited on the seabed, and finer material that settles after being dispersed by the sediment plume. The evidence will show that most benthic communities in these environments can tolerate small levels of sedimentation, but high levels, particularly of very fine sediment, can potentially cause direct effects on physiological and feeding processes for some taxa. To address this effect, sedimentation rates were estimated and the results detailed in the evidence of Dr Michael Dearnaley and Dr James. Sedimentation rates are predicted to be very low and not at levels that would impact on macro-algae, microphytobenthos or benthic fauna. Evidence from a number of studies outlined in the evidence of Dr James indicates that most taxa are tolerant of significantly higher levels of suspended sediments than would be experienced even close to the dredging site itself. The rate of recovery of the benthic environment as the ironsand operation moves across the permit site will depend on the type of sediment, the severity of effects from excavation and the sediment plume, and the availability of recolonisers. Impacts of dredging and redeposition of de-ored sand on the biological communities is not permanent and recovery will start as soon as activities move away from an area, as outlined by Dr James, there will be a gradation in recovery as the activities move to new blocks each year. In terms of zooplankton, as noted in the evidence of Dr James, predicted suspended sediment levels in the plume are well below levels shown to impact zooplankton or larval fish. Conditions have been proposed which will ensure the sediment concentrations are within the limits predicted. [. am] 4 Turning to marine mammals. Issues raised in relation to marine mammals are whether sufficient work has been done to establish marine mammal presence or use of the area, the extent to which the mining area is currently used by or is likely habitat for marine mammals, the effects of noise from the ironsand operations and the effects of the sediment plume on marine mammals. The evidence of Dr Simon Childerhouse indicates that, in coming to his conclusions, he had regard to all of the available marine mammal surveys and reports,