BEFORE THE EPA Under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 And In the matter of an application for marine consent made by Chatham Rock Phosphate Limited to mine phosphate nodules from the crest of the Chatham Rise Statement of Evidence of Deborah Maria Bartlett on behalf of Te Rūnanga o Ngāi Tahu 12 September 2014 ANDERSON LLOYD Level 10, Otago House LAWYERS Cnr Moray Place & Princes DUNEDIN Street, Private Bag 1959, Solicitor: Stephen Christensen DUNEDIN 9054 ([email protected]) DX YX 10107 Tel 03 477 3973 Fax 03 477 3184 1 Introduction 1. My name is Maria Bartlett. 2. I joined Toitū te Whenua, the environmental unit of Te Rūnanga o Ngāi Tahu (“Te Rūnanga”) on 21 February 2011. 3. I was seconded to Toitū te Whenua from the Consents section of Environment Canterbury for a year as part of the Tuia programme between Ngāi Tahu and the regional council. 4. Prior to my secondment I had spent the better part of ten years processing resource consents for Environment Canterbury, with a focus on surface water consents and river works in the Waitaki catchment and south of the Rakaia river. This included co-ordinating consents for the Project Aqua proposal of Meridian Energy Limited for the Lower Waitaki River, participation in development of the Waitaki Catchment Water Allocation Regional Plan, co-ordination of consents in the Upper Waitaki Catchment and presentation of evidence at the hearings that followed. 5. Since arriving at Te Rūnanga, in addition to engaging in Resource Management Act processes and reforms of the local government sector, I have spent the last three and half years working on the minerals, oil and gas kaupapa, beginning with response to individual mining permit applications notified to Te Rūnanga by NZ Petroleum & Minerals (NZPAM) in accordance with the Crown Minerals Act. 6. I joined the Strategy and Influence unit of Te Rūnanga in early 2012 as a consequence of responding to development of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) legislation (“the EEZ Act”). 7. I have closely followed Crown reforms focussed on mining development, including changes to the Crown Minerals Act, Conservation Act, Maritime Transport Act, Health & Safety in Employment Act, and continued development of policy and regulation associated with the EEZ Act. At each stage of the reform process, I have provided a response to articulate the Ngāi Tahu perspective. I ASR-514610-33-154-V1 Statement of Evidence of Maria Bartlett on behalf of Te Rūnanga o Ngāi Tahu 2 have also participated in direct engagement with various government departments and Crown agencies on behalf of Te Rūnanga with the aim of improving expression of Treaty partnership in statute, regulations, processes and decisions. 8. I hold a bachelor’s degree in Literature and Linguistics and Graduate Diploma in Political Science (with Distinction) from the University of Canterbury, which included studies of colonialism, nationalism and NZ public policy. 9. I am currently a Senior Policy Advisor within the Strategy & Influence unit. I am authorised to speak on behalf of Te Rūnanga o Ngāi Tahu. Executive Summary 10. This response of Te Rūnanga to the marine consent application of Chatham Rock Phosphate Limited is made in the context of Te Kerēme, the Ngāi Tahu claim, the history of Ngāi Tahu Whānui leading up to the Treaty Fisheries Settlement in 19921, and subsequent tribal development. 11. As stated in the response of Te Rūnanga to the application, on 10 July 2014, Ngāi Tahu did not fight for decades for the return of access to abundant fisheries through Settlement, only to allow erosion of the value of the resource through unsustainable and incompatible practice. 12. Included as Appendix One is the text of the Ngāi Tahu Fisheries Claim (“the Fisheries Claim”). This is an enduring articulation of the relationship of Ngāi Tahu Whānui to sea fisheries and the expectations of Ngāi Tahu rangatira in relation to Crown management of tribal fisheries resources. 13. The text of the Ngāi Tahu Fisheries Claim also appears as Appendix One in the Ngāi Tahu Sea Fisheries Report 1992, produced by the Waitangi Tribunal in relation to the Ngāi Tahu claim, Wai 27. That report was the culmination of a wealth of research, by tribal members and Crown appointed representatives, and resulted in negotiated 1 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 ASR-514610-33-154-V1 Statement of Evidence of Maria Bartlett on behalf of Te Rūnanga o Ngāi Tahu 3 redress with the Crown, including a share of deep water fisheries quota, now managed by Ngāi Tahu Seafood on behalf of the iwi authority and Ngāi Tahu Fisheries Settlement Limited. 14. Te Rūnanga recognises that the direct mining footprint is outside the takiwā boundary of Ngāi Tahu as defined in the Ngāi Tahu Claims Settlement Act (“NTCSA”)2 and so falls within the fisheries of Rēkohu/Wharekauri (see Appendix Two). As stated in the Fisheries Claim, Ngāi Tahu has no direct tribal interest in the Chathams fishery, but recognises “the duty of whānaungatanga” requiring support for the Chathams people in relation to their fisheries3. It is also important to note that the quota management areas under the Fisheries Act do not coincide with tribal boundaries. The redress achieved through the Settlement includes the legal right to fish outside the takiwā boundary. As these rights arise through the Settlement, they have cultural as well as commercial value. 15. Ngāi Tahu Whānui understand that the Chatham Rise ecosystem, from Te Pātaka o Rākaihautū (Banks Peninsula) to Rēkohu/Wharekauri is a connected whole. Kaitiakitanga is not limited by an imaginary line on the sea. 16. The conversion of abundant habitat, which has existed for millennia, to a comparative benthic desert, roughly the size of Te Pātaka o Rākaihautū (Banks Penninsula), in the centre of the Rise, immediately to the east of the Ngāi Tahu takiwā boundary4, is expected to have implications for neighbouring Ngāi Tahu fisheries. The area is not expected to recover to its former state. It is clear from the suite of evidence that implications for Ngāi Tahu fisheries are not fully understood and that they cannot be reliably predicted. The fact that the adverse effects of the mining will be intergenerational means that, from the perspective of Ngāi Tahu, the proposal is fundamentally flawed. 2 Refer to Section 2 of the Ngāi Tahu Claims Settlement Act and Appendix Two of the 10 July 2014 response of Te Rūnanga o Ngāi Tahu to the marine consent application of Chatham Rock Phosphate Limited. 3 Refer to the amended claim of 25 June 1988, point 5 in Appendix One 4 The closest point of the marine consent area to the Ngāi Tahu takiwā boundary is the southwest corner of prospecting permit PP55971, approximately 50 kilometres (27 nautical miles) away ASR-514610-33-154-V1 Statement of Evidence of Maria Bartlett on behalf of Te Rūnanga o Ngāi Tahu 4 17. By the applicant’s own admission, destruction of the protected benthic habitat within the mining licence area (MP55549) is unavoidable and will result in significant habitat change5. The area of MP55549 totals 820km2, and is almost entirely within the Benthic Protection Area established under the Fisheries Act 1996, meaning that it is anticipated that a minimum of 10% of the protected area will be destroyed6. 18. Less certain is the extent of physical and biological effects of the sediment plume radiating out from the mining footprint. The applicant talks of a likely 49 square kilometre range of harm, a potential 97 square kilometre range7, and fine particles travelling up to 500 kilometres over a three month period8, which would reach the coastlines of Te Wai Pounamu and Rēkohu/Wharekauri, depending on the currents. 19. Questions have been raised about plume direction by Ngāi Tahu fisherman Greg Summerton who has fished the Chatham Rise for decades and draws on a wealth of mātauranga. Uncertainties also exist around plume content, toxicity and cumulative effects9. Adverse effects have real potential to spread across the Benthic Protection Area, impacting more than the tenth of protected habitat that is expected to be severely damaged, particularly if the prospecting permit PP55971 area is mined within the proposed 35 year duration of marine consent. 20. Further uncertainties are present in relation to species specific responses to the combination of benthic habitat loss and plume effects, and wider food web effects10, relevant to mahinga kai and taonga species of importance to Ngāi Tahu. 5 Refer to Marine Consent Application and Environmental Impact Assessment – Response to Request for Further Information – Request No.6, 8 July 2014, Figure 9: Predicted sediment footprint after 15 years of mining; and refer to the statement of evidence of Paul Kennedy for Chatham Rock Phosphate Limited on Assessment of Environmental Impacts, paras 61 - 62. 6 Refer to statement of evidence of George Clement for Deep Water Group, p 8 7 Refer to statement of evidence of Alistair Dunn for Chatham Rock Phosphate Limited, paras 22 - 23 8 Refer to Marine Consent Application and Environmental Impact Assessment – REVISED Response to Request for Further Information – Request Nos. 3, 4 5 & 7 , 5 August 2014, p 10 - 11 9 Refer to the evidence of Ngaire Phillips 10 Refer to the evidence of Katrin Berkenbusch and Paul Krause ASR-514610-33-154-V1 Statement of Evidence of Maria Bartlett on behalf of Te Rūnanga o Ngāi Tahu 5 21. At the time of the Fisheries Claim, 1988, Tā Tipene O’Regan described the prevailing unsustainable approach to fisheries as driven by a “hasty short term profits approach”11. We see similar paralells in the risk to fisheries from the current application.