Trans-Tasman Resources Limited v The Taranaki-Whanganui Conservation Board

Case [2020] NZSC 67

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI
 SC 28/2020
 [2020] NZSC 67
BETWEEN

TRANS-TASMAN RESOURCES LIMITED
Applicant

AND

TARANAKI-WHANGANUI CONSERVATION BOARD,
CLOUDY BAY CLAMS LIMITED,
FISHERIES INSHORE NEW ZEALAND LIMITED,
GREENPEACE OF NEW ZEALAND INCORPORATED,
KIWIS AGAINST SEABED MINING INCORPORATED,
NEW ZEALAND FEDERATION OF COMMERCIAL FISHERMEN INCORPORATED,
SOUTHERN INSHORE FISHERIES MANAGEMENT COMPANY LIMITED,
TALLEY’S GROUP LIMITED,
TE OHU KAI MOANA TRUSTEE LIMITED,
TE RŪNANGA O NGĀTI RUANUI TRUST,
ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED AND
THE TRUSTEES OF TE KĀHUI O RAURU TRUST
First Respondents

AND

ENVIRONMENTAL PROTECTION AUTHORITY
Second Respondent
Court:

O’Regan, Ellen France and Williams JJ

Counsel:

J B M Smith QC and V N Morrison-Shaw for Applicant
J D K Gardner-Hopkins for Taranaki-Whanganui Conservation Board
R A Makgill and P D M Tancock for Cloudy Bay Clams Ltd, Fisheries Inshore New Zealand Ltd, New Zealand Federation of Commercial Fishermen Inc, Southern Inshore Fisheries Management Co Ltd and Talley’s Group Ltd
D M Salmon, D A C Bullock and D E J Currie for Greenpeace of New Zealand Inc and Kiwis Against Seabed Mining Inc
R J B Fowler QC, J Inns, N R Coates and H K Irwin-Easthope for Te Rūnanga o Ngāti Ruanui Trust, the Trustees of Te Kāhui o Rauru Trust and Te Ohu Kai Moana Trustee Ltd
M C Smith, H E McQueen and P D Anderson for Royal Forest and Bird Protection Society of New Zealand Inc
V E Casey QC and C J Haden for Second Respondent

Judgment:

17 July 2020

JUDGMENT OF THE COURT

A Leave to appeal is granted (Trans‑Tasman Resources Ltd v Taranaki‑Whanganui Conservation Board [2020] NZCA 86). 

BThe approved question is whether the Court of Appeal was correct to dismiss the appeal.

____________________________________________________________________

REASONS

  1. In part, this appeal raises issues in relation to the Treaty of Waitangi, Māori customary interests and the applicability of tikanga to marine and marine discharge consent applications.  We consider that we may be assisted by submissions from the Crown in relation to these matters.  Accordingly, we invite the Attorney‑General to intervene if he wishes to do so.  We direct the Registrar to bring the appeal to the attention of the Solicitor‑General and to provide her with a copy of this judgment. 

  2. We note the Environmental Protection Authority’s reservation of its position with respect to “systemic” issues raised in or affected by the appeal which may affect its future work.  We agree this is appropriate.  Should the Authority wish to provide written submissions and/or appear, leave is reserved for it to make the necessary application. 

  3. Finally, the Registrar is directed to arrange a judicial teleconference with counsel so that arrangements can be made in relation to the hearing of this appeal.  In light of the number of parties and issues, we propose to set the appeal down for two days.  It would assist the Court to ensure the available time is used efficiently if counsel conferred prior to that teleconference to discuss the division of hearing time between them and the possibility of allocating to particular parties the carriage of oral submissions in relation to particular issues.  Since we will have written submissions from all parties on the matters they each wish to address, we would prefer to avoid repetitive oral submissions.  If counsel agree on some or all of these matters prior to the teleconference, a memorandum may be filed.

Solicitors:
Atkins Holm Majurey Ltd, Auckland for Applicant
Holland Beckett Law, Tauranga for Taranaki‑Whanganui Conservation Board
Dawson & Associates Ltd, Nelson for Cloudy Bay Clams Ltd, Fisheries Inshore New Zealand Ltd, New Zealand Federation of Commercial Fishermen Inc, Southern Inshore Fisheries Management Co Ltd and Talley’s Group Ltd
Lee Salmon Long, Auckland for Greenpeace of New Zealand Inc and Kiwis Against Seabed Mining Inc
Whāia Legal, Wellington for Te Ohu Kai Moana Trustee Ltd
Oceanlaw New Zealand, Nelson for Te Rūnanga o Ngāti Ruanui Trust
P D Anderson, Royal Forest and Bird Protection Society of New Zealand Inc, Christchurch for the Royal Forest and Bird Society of New Zealand Inc
Kāhui Legal, Wellington for the Trustees of Te Kāhui o Rauru Trust
C J Haden, Environmental Protection Authority, Wellington for Second Respondent

Details
AGLC
Trans-Tasman Resources Limited v The Taranaki-Whanganui Conservation Board [2020] NZSC 67
Case
[2020] NZSC 67
Decision Date

CaseChat Overview and Summary

Trans-Tasman Resources Limited sought leave to appeal a decision by the Court of Appeal concerning marine discharge consent applications. The applicants, including Trans-Tasman Resources Limited, faced opposition from various environmental and commercial entities, and the Taranaki-Whanganui Conservation Board, which were all respondents. The Supreme Court was tasked with determining if the Court of Appeal was correct in dismissing the appeal, especially in light of the complex interplay between the Treaty of Waitangi, Māori customary interests, and the application of tikanga to marine discharge consents.

The central legal issues revolved around the interpretation and application of the Resource Management Act 1991, the Treaty of Waitangi, and the role of tikanga in the context of marine discharge consents. Key questions included whether the Court of Appeal had correctly interpreted the statutory requirements and if it had adequately considered the Treaty principles and tikanga. The court needed to decide whether the appeal raised systemic issues that warranted broader public interest considerations, potentially affecting future discharge consent applications.

The Supreme Court decided to grant leave to appeal and invited the Attorney-General to intervene, recognising the potential significance of the issues. The court also acknowledged the Environmental Protection Authority's interest in the systemic implications of the case, allowing it to submit written arguments if it chose to do so. The Supreme Court proposed to allocate two days for the hearing, encouraging counsel to confer beforehand to streamline the proceedings and avoid repetitive submissions. The court aimed to use the available time efficiently by potentially assigning specific issues to particular parties and limiting oral submissions to necessary topics.

The final orders included the granting of leave to appeal, the invitation to the Attorney-General to intervene, and the directive to the Registrar to notify relevant parties and arrange a judicial teleconference. The Supreme Court also reserved the Environmental Protection Authority's right to submit written submissions and appear if it wished to do so. The court set the appeal for a two-day hearing, emphasising the importance of efficient time management and focused discussions among counsel to address the numerous parties and complex issues involved.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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