The Environmental Protection Agency hearing into seabed mining for phosphate on the Chatham Rise is exposing questions about uncertainty - many big unknowns, including whether the applicant has done its job. If environment groups win this battle, what does it mean for the wider war?

Out on the Chatham Rise, the ridge jutting into the waters off Christchurch and extending out beyond the Chathams, Chatham Rock Phosphate has a mining permit and is now seeking EPA approval for its project to mine phosphate for fertiliser, at depths untried anywhere else in the world.

The Chatham Rise is a Benthic Protected Area. This means that it is recognised as ecologically important, and therefore the fishing method of bottom-trawling is not allowed, because of the disturbance and damage to the seabed and its communities that this would cause.

However ironically - ironically in the case of seabed mining in particular - the area is otherwise open for business, for mining and drilling, subject to approval by the EPA.

Environment groups and others say that Chatham Rock Phosphate's application must now be declined; that this is what the terms of the law, and EPA precedent decisions require. The case is one to watch, not so much because of the outcome in the particular case, although it is important, but because of its wider implications, as decisions start to emerge from EPA processes, new EEZ law settles into place, the EPA is under review – and appears to be working somewhat more effectively than previously suspected in doing exactly what the EEZ Act, anyway, requires: proceeding with caution.

In general the EPA - in spite of some problems with its processes, and arguably the government's best endeavours - is proving far more than a rubber stamp for developers. Five years post-establishment, the Agency is currently under review. Depending on which Act applies in the particular case, the EPA may from time to time make decisions under the Resource Management Act (the RMA), Hazardous Substances and New Organisms legislation (HSNO - which governs, for example, GM applications) as well as offshore oil and mining applications under the new EEZ Act and regulations, done last year.

Recent decisions have included one quashed by the High Court - which would have allowed developers of GM crops to bypass NZ laws, in which the EPA was criticised by the court for failing to act cautiously in the face of uncertainty - and a Supreme Court decision relating to King Salmon's Port Gore aquaculture application in the Marlborough Sounds, in which the Supreme Court clarified an important point about environmental "bottom lines" in the RMA and regional and coastal plans, confirming that bottom lines existed, and couldn’t be traded away.

Since then, the Basin Reserve flyover has been declined (but will be appealed by the applicants); the Ruataniwha dam decision on the fate of Hawkes Bay's Tukituki River and freshwater quality bottom lines is under appeal by environment groups; and Trans Tasman Resources' application for iron sands seabed mining has also been declined. And it is this last decision which is a key precedent for the Chatham Rise.

The Trans Tasman Resources case was the first seabed mining case, and therefore the one most analogous to the one now before the board. Permission was sought to mine iron sands off Raglan and Taranaki. It was declined because, under section 61(2) of the EEZ Act: “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.”

The decision on the application by Trans Tasman Resources stated that this is an explicit statement that, within the context of the EEZ Act, the taking of risks in the environment is not encouraged, and protection is not to be traded off against the attainment of economic wellbeing.

In other words, the requirement to favour caution and environmental protection in the face of uncertain or inadequate information is an absolute one, and we remind ourselves of section 10(3) which makes it clear that applying the information principles in section 61 is one of the ways the purpose of the EEZ Act [for sustainable management] is achieved.

When that provision went into the EEZ Act, it seemed clear - it seemed a risk - from the drafting, that there was a Ministerial intention to try to evade the internationally-recognised “precautionary principle”, at international environmental law. We (myself and others) argued that it left uncertainty and wiggle-room in interpretation that was undesirable, and that if the government intended the well-understood "precautionary" approach to apply, that was exactly the language that should be used.

Nevertheless, it now seems that whatever wiggle-room might have been intended is clearly insufficient in judicial eyes; and political semantics haven't managed to get around what is a well-established common law environmental management principle, particularly at sea, where NZ's activities are governed by UNCLOS – the United Nations Convention on the Law of the Sea, which NZ has signed, and which gives us the right to exploit the waters and seabed of our EEZ and continental shelf, but subject to the overriding international requirement to protect and preserve it.

Seabed mining, in general, is in its infancy - not just in NZ, but anywhere in the world. We know, in general, very little about what is out there, in our vast exclusive economic zone. And again, the Chatham Rock Phosphate case turns on the extent of inadequate and uncertain information. Green MP Gareth Hughes explains:

In a nutshell this application is for the deepest mining project in the world using mining equipment never used before, to vacuum up the first several meters of the seabed, including bowling ancient coral forests, taking the phosphate out and dumping the rest back – all in the midst of our most productive fishery, in an incredibly sensitive ecosystem, with some parts within a protected area where trawling is off limits. If it goes ahead it would be a world-first experiment in one of the last places we should be gambling with.

The rest of Gareth's blog is worth reading:

Seabed mining is a new field and it is hardly surprising that very little is known about the impacts, or this environment, and more importantly, how it will be affected by mining. The EPA Decision Making Committee themselves have made dozens and dozens of requests to CRP asking for more information. Marine Mammal expert Dr Slooten told the committee there was no adequate baseline research regarding the whales and dolphins resident there but just a list of species was provided. Dr Peake told the committee there was inadequate baseline data regarding the water column and others submitted highlighting the fact there are no guidelines for uranium, which will be mined up with the phosphate nodules, in the marine environment. No one knows what will happen when the mined sediment is dumped back down, how far it will travel, if it will smother and kill species on the seafloor or if new corals will take decades or a hundred years to grow back if at all. The law says if the information available is uncertain or inadequate, the EPA must favour caution and environmental protection and that’s exactly why they ruled against the first seabed mining application to mine ironsands off the Whanganui coast earlier this year.

In submissions by other environment groups to the hearing, KASM (Kiwis Against Seabed Mining), Greenpeace, Forest & Bird and others have submitted that:

• Seabed mining of this type, let alone at 450 metres depth, has not been tried before, and not by this company or its proposed contractor
• The application entails release of uranium and heavy metals back into the marine environment through dumped spoil, and likely uranium build-up in the soil from subsequent phosphate application. For both of these activities uncertainty is high, and adverse impacts largely unknown
• Potentially serious impacts on marine mammals (whales and dolphins) and failure by applicant to do its homework: “crucially, and almost unbelievably, the applicant conducted no systematic surveys of marine mammals”. In an area known to be important for marine mammals, including threatened whale species, serious risks are now identified from high levels of underwater noise on their hearing, foraging, navigation and communication
• Risks for seabirds. The Chatham Rise is New Zealand’s most important seabird area hosting 52 seabird species including at least 14 albatross species, 11 petrel species, eight shearwater species, five prion species and five storm petrel species. The Chatham Island tāiko (a type of petrel) is of particular concern because, with a population of fewer than 20 breeding pairs, the loss of even one breeding bird could hasten the species’ extinction.

The hearing comes at a time when the EPA is under review. The Environment Ministry's own internal preliminary review has been given to an independent reviewer, whose recommendations will then revert to MFE to recommend what changes will be made.

The EPA is not perfect. Its overall capability has at times seemed doubtful. The processes are rushed, putting applicants at unfair advantage and challenging submitters to assess and respond to evidence in the very short time allowed. Under the previous Minister there were some Ministerial shenanigans around who would be appointed to the decision-making boards, tending to undermine confidence in the independence of the processes.

But nevertheless, in the round - in spite of its imperfections, faults and (in the case of the EEZ) some egregiously weak regulation - the Environmental Protection Agency is doing its job: picking its way through important, highly contested cases where the stakes on both sides are high, with mixed results, but through a combination of the law and careful decisions, backed up by higher courts when needed, the thin green line is managing to hold. The law, in short, is still succeeding in doing its job of regulating and rigorously testing applications, chucking out the worst.

This case, and the Ruataniwha dam appeal, will test whether that conclusion still holds; and pressure may yet come on for further reform. 

The Prime Minister has signalled that coming RMA reforms would change the outcome of the Basin Reserve decision, by adding a reference to infrastructure in sections 6 and 7 of the RMA. 

For the EPA, or EEZ laws, will Ministerial pressure come on for another round of the search for that elusive 'balance' which requires kicking out a few more struts?

Drums, drums in the deep.