Trans-Tasman Resources Ltd Marine Consent Decision
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EXCLUSIVE ECONOMIC ZONE AND CONTINENTAL SHELF (ENVIRONMENTAL EFFECTS) ACT 2012 Trans-Tasman Resources Ltd Marine Consent Decision June 2014 Application To excavate iron sand from the seabed of the exclusive economic zone in the South Taranaki Bight (STB) in area 65.76 square hectares located between 22 and 36 kilometres (12 and 19 nautical miles) offshore. The sand is proposed to be processed onboard vessels to remove iron particles and remaining sand returned to the seabed. More specifically, the application seeks approval for the following activities: the construction, placement, alteration, extension, removal or demolition of a structure on or under the seabed (section 20(2)(a)); the removal of non-living natural material from the seabed or subsoil (section 20(2)(d)); the disturbance of the seabed or subsoil in a manner that is likely to have an adverse effect on the seabed or subsoil (section 20(2)(e)); the deposit of anything or organism in, on, or under the seabed (section 20(2)(f)); the destruction, damage, or disturbance of the seabed or subsoil in a manner that is likely to have an adverse effect on marine species of their habitat (section 20(2)(g)); the construction, mooring or anchoring long-term, placement, alteration, extension, removal, or demolition of a structure or part of a structure (section 20(4)(a)); and the causing of vibrations (other than vibrations caused by the normal operation of a ship) in a manner that is likely to have an adverse effect on marine life (section 20(4)(b)). 2 … Decision Pursuant to section 62(1)(b) – Decisions on applications for marine consents – of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 ( the EEZ Act), the application for a marine consent by Trans-Tasman Resources Ltd is REFUSED. The reasons for refusing consent are set out below in this decision (pursuant to section 69 – Decision of the Environmental Protection Authority – of the EEZ Act). Executive summary 1. Trans-Tasman Resources Ltd (TTR) sought a marine consent under the EEZ Act to undertake iron ore extraction and processing operations. The application area was 65.76 square kilometres, located between 22 and 36 kilometres (12 and 19 nautical miles) offshore in the South Taranaki Bight (STB). An Impact Assessment supported the applications for marine consents as required under section 38 of the EEZ Act. 2. TTR proposed the excavation of up to 50 million tonnes per year (up to 27 million cubic metres per year) of seabed material containing iron sand, for processing on a floating processing, storage and offloading Vessel (FPSO). Around 10% of the extracted material would be processed into iron ore concentrate for export, with the residual material (approximately 45 million tonnes per year) returned to the seabed as de-ored sediment via a controlled discharge at depth below the FPSO. 3. The deposition of the de-ored sediment would create a sediment plume with a median extent of approximately 50 kilometres long and up to 20 kilometres wide, predominantly east south-east from the mining site. In addition to the direct effects at the mining site many of the effects of the proposal would result from the plume and accordingly we address them in some detail below. One of the more significant impacts would be on the primary productivity. Modelling of the optical properties and primary production indicated a reduction of total primary production in the 12,570 square kilometres of the STB could be in the order of 10%, and a reduction in energy input into the seabed ecosystem of up to 36%. 4. The application was heard and determined by a Decision-making Committee (DMC) appointed by the Environmental Protection Authority (EPA), which is the consent authority. The procedural history of the application and the hearings process is set out in some in detail in Appendix 1 to this decision. 5. Our decision is to refuse consent. The reasons for this are summarised here and fully set out in the rest of this decision. 6. We have determined that the applications do not satisfy the purpose of the EEZ Act (section 10(1)): “The purpose of this Act is to promote the sustainable management of the natural resources of the exclusive economic zone and the continental shelf.” 3 … 7. ‘Sustainable management’ is defined in section 10(2) as follows: “In this Act, sustainable management means managing the use, development, and protection of natural resources in a way, or at a rate, that enables people to provide for their economic well- being while— (a) sustaining the potential of natural resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and (b) safeguarding the life-supporting capacity of the environment; and (c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.” 8. Section 10(3) states: In order to achieve the purpose, decision-makers must— (a) take into account decision-making criteria specified in relation to particular decisions; and (b) apply the information principles to the development of regulations and the consideration of applications for marine consent.” 9. In making our decision, we have taken into account decision-making criteria set out in sections 59 and 60 of the EEZ Act and have applied the information principles in section 61 of that Act. As required, we have addressed the effects of the proposal on the environment and on existing interests, using what we have determined is the best available information. In doing so, we have found that there is considerable uncertainty regarding the scale of those effects based on the information we had before us. In particular, these related to primary productivity and benthic effects and consequent ecosystem effects as well as the impacts on existing interests notably iwi and fishing interests. We have also taken a cautious approach to the impacts on marine mammals given the legislative direction to take into account the importance of protecting rare and vulnerable ecosystems and the habitats of threatened species (section 59(e)). 10. The applicant and most submitters acknowledged that there was uncertainty and accepted that, in this situation, we were to apply sections 61(2) and (3) (and as set out in section 10(3) – Purpose) of the EEZ Act. These are: “(2) If, in relation to making a decision under this Act, the information available is uncertain or inadequate, the EPA must favour caution and environmental protection. (3) If favouring caution and environmental protection means that an activity is likely to be refused, the EPA must first consider whether taking an adaptive management approach would allow the activity to be undertaken.” 11. We have, as required, favoured caution and environmental protection. In doing so, we have also considered the extent to which imposing conditions under section 63 might avoid, remedy or mitigate the adverse effects of the activity (section 59(2)(j)). 4 … 12. On 8 May 2014, the last day of actual hearings, the applicant proposed a detailed suite of conditions that included a “risk-based tiered adaptive management approach”. As we set out in some detail in this decision, the conditions proposed by the applicant, while extensive, are not sufficient to give us the degree of confidence we needed to be able to grant consent to the proposal. 13. The uncertainties in the scope and significance of the potential adverse environmental effects, the lack of confidence we find in the extent to which existing interests will be appropriately taken into account, the lack of clarity about the extent of economic benefit to New Zealand outside of royalties and taxes and the economic value of the adverse effects, cannot be remedied by the imposition of other lawful conditions that we could require based on the evidence before us. 14. In summary, on the evidence presented, we are not satisfied that the life-supporting capacity of the environment would be safeguarded or that the adverse effects of the proposal could be avoided, remedied or mitigated,1 nor do we consider that the proposed conditions (including the adaptive management approach) are sufficiently certain or robust for this application to be approved, given the uncertainty and inadequacy of the information presented to us about the potential adverse effects. 15. Overall, we think this application was premature. More time to have better understood the proposed operation and the receiving environment and engage more constructively with existing interests and other parties may have overcome many of the concerns we have set out in this decision. It is conceivable that at least some of these matters could have been addressed contemporaneously with the other investigative work the applicant undertook prior to lodging the application for consents. Ultimately, the information upon which we had to make our decision, while voluminous, was too uncertain and inadequate, and we did not have sufficient confidence in the adaptive management approach proposed to address that uncertainty and inadequacy to enable the activity to be undertaken. For all of these reasons, the application as presented to us does not meet the sustainable management purpose of the EEZ Act. 1 Section 10(2)(b) and (c) of the EEZ Act. 5 … Table of contents 1. Structure of the decision .......................................................................................................... 10 1.1. Abbreviations and acronyms used in this decision ........................................................... 10 2. Introduction/background