UNDER
the Resource Management Act 1991
IN THE MATTER
of an application by The Astrolabe Community Trust to
the Bay of Plenty Regional Council for resource consents
in relation to the remains of the MV Rena.
MEMORANDUM BY APPLICANT REGARDING MEMORANDUM 21 AS TO
SCOPE AND EXISTING ENVIRONMENT
Dated 28 September 2015
Solicitor Acting:
Michael McCarthy
Lowndes, P.O. Box 7311, Auckland 1141
Tel 64-9-373 3331 Fax 64-9-373 3423
litigation@lowndeslaw.com
Counsel:
Matthew Casey QC
P.O. Box 317, Shortland Street,
Auckland 1140
Tel 64-9-3370400
matt@casey.co.nz
To:
1.
The Rena Hearing Panel
By this memorandum the applicant responds to the Hearing Panel’s
Memorandum No. 21 of 22 September 2015.
2.
The applicant agrees that it is desirable to clarify the matters raised, in
particular to assist further expert caucusing. However it does not agree
with aspects of the Panel’s proposed resolution.
3.
The two principal matters of disagreement are first, in relation to the
scope of the application and what is sought to be abandoned under s
15A of the RMA, and secondly the ‘reference environment’ for the
purposes of assessing effects of the proposal. The applicant does not
agree that everything now on the seabed is subject to the application;
and nor does it agree that the effects of the proposal are to be
assessed by reference to the pre-Rena state.
4.
The starting point is s 104(1)(a) which states that when considering the
application for resource consent the Panel must have regard to:
Any actual and potential effects on the environment of
allowing the activity
5.
Two points that directly arise from this are:
(a)
the effects to be considered are those ‘of the activity’, meaning
the activity which the application for resource consent seeks to
authorise; and
(b)
the effects to be considered are those ‘on the environment’.
Appropriate statutory pathway
6.
The applicant agrees with paragraph 4 of the Memorandum that as the
wreck is in the coastal marine area, relevant provisions of the RMA
apply. It notes however that the primary statute applying to a shipping
casualty is the Maritime Transport Act 1994 (MTA), including both the
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‘hazardous ship’ provisions in Part 20 and the limitation provisions
(which also apply to wreck removal) in Part 7 of the MTA. The RMA
does not supercede these provisions and should be read with them,
particularly the ‘proportionality approach’ of the MTA.
7.
The applicant substantially agrees with paragraphs 5 and 6 that s 15A
applies, and for reasons set out below it submits that s 15B also applies
or is relevant.
8.
Section 15A is the appropriate section for the principal consent of
dumping/
abandonment,
both
when
applying
interpretation and in light of the legislative history.
a
purposive
However the
applicant does not agree that s 15A applies “to all the material on the
seabed”, in the way the Panel proposes in paragraph 7, nor to the
consequences in paragraph 8, particularly as to conditions to avoid
remedy or mitigate adverse effects of the wreck itself and of
contaminants that have already been discharged.
9.
The scope of the application and the Panel’s jurisdiction to impose
conditions require an analysis both of the application itself and of the
relevant sections of the RMA, being those under which the application
has been brought. An applicant can choose that for which it seeks
consent, and in this case it has chosen to seek consent for certain
matters and not others.
Statutory provisions and framework
10.
A proper understanding of the application and its scope requires an
analysis of the sections under which the consents are sought. This is
because the application seeks consent to that which would (in the
absence of consent) be a breach of those sections.
11.
The consents sought are a prospective consent to abandon that which
if it was left would breach s 15A(2); and a consent for any future
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discharges, from what is to be abandoned, that would (if in excess of
the threshold) breach s 15B(1).
12.
The primary consent (i.e. abandonment) is sought under s 15A(2) which
relevantly states:
No person may dump, in the coastal marine area, any ship …
unless expressly allowed to do so by a resource consent.
13.
The application does not seek consent under s 15A(1) to the dumping
of waste or other matter from a ship.1 That is because what it seeks
consent for is not “waste or other matter” and it is not being (and has
not been) “dumped” (i.e. deliberately disposed of) as those terms are
used in s 15A(1).
14.
15.
Dumping is defined in s 2 RMA as (relevantly):
(a)
In relation to waste or other matter, its deliberate disposal; and
(b)
In relation to a ship, … its deliberate disposal or abandonment.
The definition makes a distinction between dumping by “deliberate
disposal” (which can apply both to waste and to a ship) and dumping
by “abandonment” (which applies to a ship, but not to waste). This
distinction is relevant not only to the question of scope but also to
what is the ‘reference environment’ referred to later in this response.
16.
Section 15A(2) can therefore apply either to the deliberate disposal of a
ship (as with a ‘prepared wreck’) or its abandonment. Section 15A(1)
only applies to the deliberate disposal of waste or other material from a
ship (i.e. casting over the side). What is proposed is an abandonment
following an accidental maritime casualty, not the deliberate disposal
of either the ship or of ‘waste’. Consent is sought to do that which
would otherwise be proscribed by s 15A(2), not s 15A(1).
1
Section 15A(1) relevantly states: No person may, in the coastal marine area,
dump any waste or other matter from any ship unless the dumping is expressly
allowed by a resource consent.
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17.
The applicant therefore disagrees with the Panel’s tentative view in
paragraph 7 that what has been applied for is (or includes) the
dumping of waste in terms of s 15A(1).
18.
What comprises a ‘ship’ for the purpose of an application made under
s 15A(2) can only be that which the abandonment of would be in
breach of the section. While ship parts and remnant cargo both within
and in the immediate vicinity of the wreck can be regarded as ‘ship’ for
that purpose, this does not include materials that are in a state that s
15A(2) does not apply to them.
19.
This also follows from the distinctions made in s 15A between ‘ship’
and ‘waste or other matter’, and between these and ‘harmful substance
or contaminant’ in s 15B.
20.
If (as agreed) the wreck constitutes a ship for the purposes of s 15A,
then the release or escape of harmful substances or contaminants from
it are logically within the ambit of s 15B as being a discharge from a
ship. The Panel’s Memorandum suggests that harmful substances or
contaminants that have already been discharged and remain in the
environment are covered by s 15A, either as part of a ‘ship’ being
abandoned or as “waste or other matter” that was deliberately disposed
of. The correct application of the respective sections is that they are
(or were) subject to s 15B, being harmful substances or contaminants
that were discharged from the ship.
21.
These discharges (assuming the s 15B threshold was exceeded) were in
breach of s 15B and not s 15A. This is confirmed by the fact that the
owner was charged with, and convicted of, an offence of breaching s
15B, not s 15A.
The application expressly disclaims any seeking of
retrospective consent for these discharges.
22.
The application has applied a containment test in relation to what has
already been discharged. The RMA defines discharge as: “Discharge
includes to emit, deposit and allow to escape”. It is inclusive of the
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natural and ordinary meaning of ‘discharge’,2 central to which is the
escape from some form of containment or confinement.3 It is a wellestablished principle that the discharge occurs at the point at which the
contaminant leaves the effective control or containment of the
discharger.4
23.
The further breaking down, remobilisation or dispersal of the
contaminant material does not constitute a fresh discharge, but is a
consequence of the original discharge. Any effects from that breaking
down or dispersal are effects of the original discharge, not a new
discharge.
Scope of Application
24.
The application is not directed at the remediation of what some have
described as a contaminated site, such as might be the case if
application had been made for retrospective consent. Whether or not
an applicant was responsible for an existing contaminated state is not
relevant to the issue of what are the effects of a proposed future
discharge.
25.
The application is clear that neither the dumping/abandonment nor the
discharge components of the consents sought are retrospective:5
The application does not seek retrospective consent for the
actual grounding and its aftermath, and for discharges that
have already occurred.
It cannot be read as including that which the application made clear
was not included, and which is covered by sections of the RMA under
which consent was not sought.
2
3
4
5
Doug Hood Ltd v Canterbury Regional Council AP 192/98 (HC) at [25] applying
McKnight v NZ Biogas Industries Ltd [1994] 2 NZLR 664 (CA) at p 672.
The New Oxford Dictionary defines discharge as “Allow (a liquid, gas, or other
substance) to flow out from where it has been confined”.
Minister of Conservation v South Taranaki District Council (Decision W061/93).
Application, Volume 1 at page ii (Executive Summary), and 2.1 (Overview).
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26.
In case it might be thought that the scope of the s 15A application
extends to the already-discharged contaminants (i.e. as part of the
‘ship’) the application was clear in scope by expressly excluding the
material already discharged (thus excluding the TBT and cryolite
discharged as part of the grounding and subsequently). The excluded
matters, as stated in para 3.2, were (inter alia):
[The application] does not seek to authorise the grounding or
its aftermath, including those discharges that have already
occurred … Contaminants that have already been emitted or
have escaped from the vessel and/or containers into the
environment. These discharges have been dealt with through
prosecution under the RMA and are outside the scope of this
consent.
27.
This was also made explicit in para 3.4.2:
Following the grounding of the Rena, quantities of various
types of harmful substance or contaminants were discharged.
Many of them have been dissolved or dispersed, or have
washed up on the shore and been removed. Some
contaminants are present in the soft sediments of the
Reef, and on the seabed nearby. In respect of these
discharges (which have already occurred), there is no
intention or requirement to seek retrospective consent.
Some contaminants are still contained within the wreck. These
6
include some remnant cargo such as TCCA and copper clove,
as well as parts of the vessel itself (e.g. anti-fouling paint).
[emphasis added]
28.
The application sought resource consent pursuant to s 15B for any
future discharges from the wreck, where they might exceed the s
15B(1) threshold after reasonable mixing. The purpose of that consent
was to address the possibility that some contaminants were still
‘contained’ within the wreck and might escape or be released. That
now only applies to the copper clove (which was considered at the time
to be still contained) and the antifouling paint on the vessel (if its
discharge over time exceeds the s 15B threshold).
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Conditions
29.
Paragraph 8 of the Panel’s Memorandum concludes that conditions
may be imposed to avoid remedy or mitigate any adverse effects “of
the wreck itself or any of its cargo whether that is contained within the
remains of the vessel or on the seabed in the immediate vicinity”. That
statement is incorrect unless proper cognisance is taken of the scope
of the consents sought and the subject matter to which they relate (as
above).
30.
Paragraph 9 suggests that it is the Panel’s intention to impose
conditions that address both the effects that already exist and the
additional effects of the proposal. The applicant respectfully submits
that conditions cannot be imposed for the purpose of addressing the
effects of the grounding and its aftermath, but only such “additional
adverse effects” as may arise from the activity/ies for which consent is
sought.
31.
Any conditions that are imposed must fairly and reasonably relate to
the activitiy/ies for which consent is sought.
Conditions must be
reasonable and be logically connected to the proposal: Newbury and
Estate Homes.
32.
It follows that conditions may be imposed in respect of contaminants
that might in future be discharged from the wreck, above the s 15B
threshold. Apart from the copper clove (treated as a separate matter
for reasons already canvassed) this will now only apply to antifoul in
paint flakes that might be abraded from those parts of the hull where
antifouling is still present.
The experts agree that there is very little
TBT paint remaining on the bow section.7
An issue yet to be
determined is the likely extent of future movements of the aft section
likely to result in abrading of the antifoul paint. TBT emitted into the
6
TCCA was in canisters (and therefore ‘contained’) in the wreck and debris field
but has since been recovered.
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water column by the process of corrosion of the hull will be gradual
and will not exceed the threshold8.
33.
TBT and other contaminants (e.g. cryolite) that have already been
discharged are not the result of proposal (i.e. the activity for which
consent is sought).
Conditions cannot be imposed that relate to
contaminants which are already on or in the seabed, although such
conditions may be offered by the applicant on an Augier basis.9
34.
The Regional Council is concerned about the difficulties of applying
this strict legal approach and possibly having to ‘prove’ the additive
effects of future discharges as distinct from past discharges.
The
applicant agreed with the Council to amend the conditions so as to
address this concern, and not require differentiation between pre- and
post-consent discharges for the purposes of monitoring and,
thereafter, contingencies.
However, the extent of the applicant’s
concession was to remove the distinction in relation to the monitoring
and contingency conditions sought by the Council.
The applicant
reserved its position in case it was taken to have amended the
application so as to effectively seek retrospective consent, which it is
not doing.
35.
The applicant’s position (subject to that reservation) is that the
proposed contingency conditions will be available in respect of all
contamination on the seabed regardless of whether this is in the scope
of the consent sought. To the extent that this applies to contamination
that is present as a result of the grounding and subsequent discharges,
this is being offered on an Augier basis.
7
8
9
Wreck Removal & Salvage JWS, para [18].
Evidence of Jon Brodie, also Lance Marshall
Augier v Secretary of State for the Environment 1 (1978) 38 P & CR 219 (QBD).
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Existing Environment
36.
Paragraph 9 of the Panel’s Memorandum confirms that a ‘real world’
approach is needed. It also records that the ‘ship’ and its ‘waste’ are
having ongoing effects ‘on the environment’, and that there is the
potential for future ‘additional adverse effects’.
The Memorandum
identifies four potential reference points:
(a)
The pre-Rena state;
(b)
The casualty and its aftermath, the casualty state;
(c)
The state that exists at commencement of the resource consent
if granted – the consented state;
(d)
37.
The future environment – the future state.
The Memorandum then proposes (at para 10) that “any ongoing effects
of the existing state should be considered against the pre-Rena state”, on
the basis that “it is wrong to include as part of the existing environment
effects arising from the subject matter for which the consent application
is applied”. It is respectfully submitted that this approach is wrong
both in principle and as a matter of logic.
38.
As already noted, the application does not seek consent for the
grounding and its aftermath so it is wrong to describe the existing
effects as arising from the subject matter for which consent has been
applied. The statement misconstrues the activity for which consent is
sought and confuses the existing effects of the grounding and
aftermath with the future effects of the proposal. The environment
now includes the effects of the grounding and aftermath, and it is
against this which the future effects of abandonment should be
assessed.
39.
Section 104(1)(a) is clear that it is only the effects of the proposal, and
only on the environment, that are to be considered. What constitutes
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the environment is a matter of factual inquiry, not a hypothetical
construct. That is, what is the environment now (for the assessment of
immediate effects), and what it might be in future (for assessing future
or potential effects), but not what it ‘might have been’.
40.
Several
leading
decisions
concerning
what
constitutes
the
‘environment’ illustrate the ‘real world’ approach as one that is realistic,
factually based, and non-fanciful.
In Auckland Regional Council v Arrigato Investments Ltd [2002] 1 NZLR
323, the Court of Appeal held, at [36]:
The Act contemplates the relevant environment being
addressed in a realistic and factually based way.
Likewise in Queenstown Central ltd v Queenstown Lakes District Council
[2013] NZHC 815, the High Court held, at [85]:
Section 104D, and indeed the RMA as a whole, calls for a “real
world” approach to analysis, without artificial assumptions,
creating an artificial future environment.
In Smith Chilcott Ltd v Auckland City Council [2001] 3 NZLR 473, the
Court of Appeal held, at [26] (in relation to assessment of the permitted
baseline):
We begin with what is allowed under the relevant plan. In
accordance with the purpose of the legislation anything that
is permitted but fanciful does not provide a realistic indication
of what is permitted and a proper point of comparison. There
must be a practical fact specific assessment. The test is
perhaps best captured in a single expression as the discussion
at the hearing indicated. Of the various phrases used in
Barrett and elsewhere, "not fanciful" appears to us to set
the standard appropriately. It follows that any permissible
use qualifies under the permitted baseline test unless in all
circumstances it is a fanciful use. It accordingly follows that we
agree with Salmon J that in this respect the Environment
Court has erred in law.
[Emphasis added]
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41.
It is submitted that to assess this application against a pre-Rena
environment is a hypothetical construct and not consistent with a ‘real
world’ approach. The wreck is already on the reef; it is artificial and
speculative to imagine otherwise. Even if it were somehow practicable
to imagine the environment without the wreck on it, the contaminants
on the seabed would remain, along with any damage from the
grounding and from the (assumed) removal of the wreck.
42.
It is significant, and important in this context, that the RMA expressly
differentiates
between
deliberate
disposal
and
abandonment.
‘Abandon’ in the context of a maritime casualty (e.g. ship, aircraft or
offshore installation) means to leave behind something that is already
there. It is inherent in that distinction that the thing to be abandoned
is already present and part of the environment, in contrast to
‘deliberate disposal’ where the thing to be disposed of is not (or is
assumed not to be).
43.
The Crown’s opening submissions at [47] accept that the application is
not retrospective, and that a retrospective application would serve no
useful purpose. But notwithstanding this, the Crown goes on to submit
that cases concerning retrospective consent applications are somehow
analogous, citing Oman Holdings Ltd v Whangarei District Council and
The New Zealand Kennel Club Inc v Papakura District Council.
44.
The principles in Oman and Kennel Club are not applicable to this
application.
They were applications for retrospective consent to
authorise an activity that had been undertaken but without the
necessary consent.
The present application does not seek consent to
authorise what has already occurred, and cannot be treated in the
same way as would a retrospective application such as for ‘deliberate
disposal’.
45.
The Crown submits that the applicant obtains some de facto advantage
through this state of affairs. This is not correct.
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46.
The current state of the environment is the result of a maritime
casualty, not of an unauthorised activity for which consent should have
been obtained but was not.
The applicant does not seek to take
advantage of any prior wrongful and deliberate act. The consequences
of the grounding and its aftermath have been addressed though
compliance with the MTA and the undertaking by the owner of all
reasonably practical steps, going well beyond its legal obligations.
47.
The presence of the wreck as part of the existing environment has
statutory recognition in the applicable planning instruments, including
the Regional Coastal Policy Statement (pursuant to an order of the
Environment Court) and the proposed Regional Coastal Environment
Plan.
48.
The future effects of abandonment are simply to be assessed against
the reality of the environment as it exists.
49.
The appropriate comparison, both for assessing the effects of the
proposal and for the purposes of conditions, is the consented state. It
is only the additive effects that would be the result of the
abandonment.
The applicant’s agreed position reached with the
Council is that any future increase in contaminant levels can be treated
as a consequence of the proposal without putting the Council to proof.
There is still a requirement that such increase (either alone or in
combination with existing levels) has an adverse effect - either a risk to
human health or significant effects on ecology - as the agreed
conditions provide for.
Adaptive Management
50.
The applicant agrees with the Panel’s approach at paragraph 9 that an
adaptive approach is required to monitor future effects on the
environment.
However it might not be accurate to describe this as
‘adaptive management’, as that term is commonly used.
The
adaptability applies to the sampling and monitoring programme, and
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to the application of contingency measures. Adaptive management in
an RMA context is where the consented activity is intended to be
managed in such a way as to adapt to future effects or circumstances
as they arise (e.g. in King Salmon the salmon farming was to be
adaptively managed).
In the present case the conditions will provide
for a tiered response to increases or decreases in the levels of
contaminants over time. This is not uncommon for consents involving
contingency conditions.
51.
The applicant agrees with the Panel’s view that the base line for
monitoring and contingencies should be set as the existing
situation/consented state as this is the most practicable to determine
and measure against. However it does not accept that it can be an
objective of the consent (or the conditions) to ‘enhance or rehabilitate
the environment back to its pre-Rena state’ as suggested in paragraph
13.
52.
While recovery of the environment from the effects of the grounding is
already evident and it ‘is expected to recover to a state where the risk
of contaminants and other wreck-related stressors will be negligible’,
the experts say that it will not return to a pre-Rena state: Ecology &
Contaminants JWS at [39(d)].
53.
The applicant has agreed to the proposed contingency measures with
the Council subject to reasonableness and practicality including
considerations such as cost and relative benefits; but the application
does not propose remediation per se, other than where this may be
necessary to address risks to human health or significant adverse
effects from increased contaminant levels.
Marine Pollution Regulations
54.
An issue has been raised about the possible application of the
Resource Management (Marine Pollution) Regulations 1998. As set out
in the applicant’s opening (and not contested in other legal
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submissions) these Regulations are directed at the ‘casting over the
side’ scenario involving deliberate dumping of waste from a ship. As
recorded in the explanatory note at the end of the Regulations, they
are derived from the 1996 Protocol to the London Dumping
Convention 1972. The 1996 Protocol is concerned with the deliberate
disposal of waste and ships, and not with what to do with a shipwreck
once it is on the seabed.
While the Regulations are relevant to a
consent sought under s 15A(1)(a) – dumping waste from a ship – they
are not applicable to the abandonment of a shipwreck to which s
15A(2) applies.
55.
Regulations 4(1) and 4(3)(b) make it clear that the general prohibition
against dumping waste in the coastal marine area does not apply to
any discharge made in accordance with s 15B of the RMA. This is
consistent with the applicant’s approach that future discharges (if any)
of contaminants still contained within the wreck are not subject to the
Regulations. However this does not mean, as paragraph 14 of the
Panel’s Memorandum suggests, that s 15B is not applicable to a
maritime casualty.
Dated 28th September 2015
______________________________
Matthew Casey QC
Counsel for the applicant, The Astrolabe Community Trust
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