Two recent cases have seen the Court of Appeal and High Court elucidating key concepts of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012. In Environmental Protection Authority v BW Offshore Singapore Pte Ltd [2020] NZHC 704 the EPA succeeded in its application to prevent the departure of a floating production vessel from the depleted Tui oil field off Taranaki. In Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2020] NZCA 86 the Court made findings of multiple overlapping errors in the decision of a Committee of the EPA to grant marine consents to excavate seabed material in the Taranaki Bight.
Environmental protection objective a bottom line
The Court of Appeal confirmed that a central question for the EPA when considering whether to grant a marine discharge consent is whether this would be consistent with s 10(1)(b) of the Act, which provides that a purpose of the Act is to "protect the environment from pollution by regulating or prohibiting the discharge of harmful substances". Both the High Court in BWO and Court of Appeal in TTR found that this purpose must be expressly considered as an "environmental bottom line".
Where there is uncertainty as to whether a proposal would fulfil that purpose, the Court of Appeal held that the EPA is to "favour caution and environmental protection". Due to the risk of environmental harm, adaptive management or "learning by doing" is not an option under the Act for marine discharge consents.
Holistic analysis under the Act
Both the High Court and Court of Appeal highlighted the importance of holistic and complete analysis of effects under the Act. Key findings included:
- The Act is only concerned with the effect of those activities on the environment and existing interests, legal ownership is irrelevant. Suggesting that there might be further environmental effects but that these would be the responsibility of other parties because they own the relevant equipment was found to be untenable.
- The need for a broad and holistic approach is reinforced if the decision can result in the exclusion of other interested parties from participating, such as with section 162(2).
- The EPA must consider the effects of an activity that go beyond the EEZ in accordance with the legislation that regulates that space. Where the effects of the proposal extended into the coastal marine area, the EPA needed to consider whether those effects would be consistent with the RMA and NZCPS objectives and the environmental bottom lines that the NZCPS establishes.
Kaitiakitanga existing interest
The Act sets out requirements for EPA decision-making to recognise and respect the Crown's obligations to give effect to Treaty of Waitangi principles, and to consider the effect of activities on existing interests. The Court of Appeal held that the kaitiakitanga relationship between the relevant tangata whenua and the marine environment (and its cultural and spiritual components) was an existing interest. An activity's effects on this existing interest, including on the stewardship role and resource use it encompasses, must be considered by the EPA where relevant, for its decision to be consistent with Treaty principles.
Power of the EPA
The High Court has held that an abatement notice may be given by the EPA notwithstanding an earlier approval, if circumstances have changed and adverse effects have not been expressly recognised in the earlier approval. This finding was based on the Court reading into the Act aspects of the corresponding Resource Management Act provisions.
The Court's analysis confirms the broad powers of the EPA under the Act to act in the interests of the environment, especially in instances where circumstances are changing.
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