MARINE AND DISCHARGE PERMIT APPLICATIONS

T R AN S - TA S M A N R E S O U R C E S LT D

SUMMARY STATEMENT FOR THE

DECISION MAKING COMMITTEE

DR PHIL MITCHELL

17 March 2017

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SCOPE OF PRESENTATION

I propose to take most of my primary evidence

as read.

I wish to focus on:

Several matters raised in my rebuttal

evidence.

Matters raised during the hearing and

witness conferencing.

Proposed consent conditions.

I will then present a brief conclusion.

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REBUTTAL EVIDENCE

My rebuttal evidence focussed on:

Baseline information.

Sufficiency of information.

Adaptive management.

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REBUTTAL EVIDENCE - “BASELINE INFORMATION”

Witness conferencing has confirmed that it is appropriate to differentiate between

the information available at the time a consent is granted and that which is

available prior to an activity commencing.

When I prepared my evidence, I was satisfied that there was sufficient information

available to reliably assess the effects of the proposal.

That opinion has been confirmed, indeed reinforced, having heard virtually all the

proceedings in Wellington and New Plymouth and having read the hearing

transcript and the various expert witness conferencing statements.

To avoid confusion between the “baseline” information available now, and that to

be collected “prior to extraction beginning”, it has been agreed to rename the

BEMP the “Pre-commencement Environmental Monitoring”.

It is also fundamentally important that the DMC “signs off” on the “pre-

commencement” monitoring, prior to it being undertaken.4

REBUTTAL EVIDENCE – INFORMATION SUFFICIENCY

Based on the evidence prepared by TTRL’s technical experts, I do not consider

that the information available to the DMC is “uncertain or inadequate”, such that

the DMC would be required to “favour caution”.

There is no requirement that absolute certainty is required in order for consent to

be granted.

Rather, the information available needs to be sufficient to enable consent

conditions to be imposed that are both certain and enforceable and which are

sufficient to ensure that the environment is appropriately protected.

I am also satisfied that the information available to the DMC is the “best available

information”, as required by section 61(5).

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REBUTTAL EVIDENCE - ADAPTIVE MANAGEMENT

The environmental management approach proposed by TTRL does notconstitute an “adaptive management approach” as contemplated by theEEZ Act.

In my opinion, an “adaptive management approach” exists only where:

There is considerable uncertainty around the scale and extent of effects; and

There is a need to take an experimental approach to a project so that

uncertainty around effects can be assessed at an initial scale and the proposal

adapted in order to address those effects.

In the marine setting under the RMA, I am aware of a number of cases where adaptive management has been required, and I have been involved in a number of them personally. In all the cases I am aware of, staging and the prospect of shutting down the operation, were fundamental to the consents being granted.

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REBUTTAL EVIDENCE - ADAPTIVE MANAGEMENT (CONT.)

If the approach of setting limits, monitoring the activity against those limits,and reviewing the appropriateness of the effects on the environment, weredeemed to be an “adaptive management approach” under the EEZ Act,then, in my opinion:

It would be extremely unlikely that anything other than a trivial dischargewith de minimis effects could ever gain consent under the EEZ Act; and

Not taking the approach proposed would be irresponsible and constitutea “great leap backwards” in terms of environmental management.

All the above said, I believe this point is now moot, given that specificconservative discharge standards are now proposed, rather thanstatistically-based receiving environment standards.

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MATTERS RAISED DURING THE HEARING

In response to matters that have arisen during the proceedings, thus far, I wish to

comment briefly on:

The RMA planning documents relevant to managing the adjacent Coastal

Marine Area under the RMA.

Marine protected areas.

The role of Augier conditions.

Conditions, acknowledging the “Conditions Report” prepared by Mr Lieffering -

that I mostly agree with, but not in all respects.

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THE RMA COASTAL MANAGEMENT DOCUMENTS

Summarised in the Impact Assessment, and in detail in Appendix 7.4.

Required to be “taken into account”.

The key relevant documents are:

New Zealand Coastal Policy Statement;

Taranaki Regional Policy Statement;

Taranaki Regional Coastal Plan.

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THE RMA COASTAL MANAGEMENT DOCUMENTS (CONT.)In summary:

If the proposal were located inside the CMA, it would be a discretionary activity.

The proposal does not impact on any areas or resources that the documents

seek to protect – the only “significant areas” identified in the regional

documents that are beyond the immediate coastal fringe are the North and

South Traps, located more than 25km away.

None of the “avoid adverse effects” policies in the NZCPS are triggered by the

proposal.

In terms of these marine and marine discharge consents, the key matter that

arises from the RMA documents is the need to manage environmental effects

in the CMA by imposing appropriate conditions.

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MARINE PROTECTED AREAS

The following slides show the locations and details of the marine protected areas

in the Taranaki Coastal Marine Area.

All are remote from the application area, being at least 100 km distant.

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MARINE PROTECTED AREAS (CONT.)

~ 95 km

from project

area

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MARINE PROTECTED

AREAS (CONT.)

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AUGIER CONDITIONS

The applicant has proposed a range of conditions on an Augier basis in the

following areas:

Tangata whenua conditions [new condition numbers 44 - 52 ].

Community relationship conditions [new condition numbers 53 – 57].

A number of conditions regarding Origin Energy’s submission [to be inserted

from new condition number 80 onwards].

Several management plans that it might be argued are not relevant here, as

they are addressed in other statutes by other agencies [see Section 2.2.7].

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AUGIER CONDITIONS (CONT.)

The Augier conditions proffered are, in my opinion, extremely important and they

record the applicant’s commitments to tangata whenua, the local community and

addressing matters raised by certain submitters.

The EPA have reservations about the proposed Augier conditions because, as I

understand it, they do not want to be responsible for enforcing them, particularly

where they relate to issues between TTR and one particular party.

I understand that the EPA would prefer the matters in the Augier conditions to be

addressed via side-agreements.

In my experience these types of conditions are often offered (and imposed) on

resource consents under the RMA.

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AUGIER CONDITIONS (CONT.)

Regarding the “tangata whenua” conditions:

A side-agreement would require engagement, which to date has not occurred;

and

Mr Young has confirmed that they should remain.

Regarding the Origin conditions:

Those tabled yesterday by Ms Carruthers have been agreed with TTRL; and

Including those conditions (not all of which are Augier conditions) is fundamental

to addressing their concerns.

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CONDITIONS

Conditions have been discussed and refined prior to and since the lodging of these

applications.

More recently, they have been further refined and improved following the

conferencing of the various technical witnesses, receipt of Dr Lieffering’s

“Conditions Report” and from the planners’ conferencing. All conditions agreed in

technical witness conferencing have been included.

The latest version was provided to counsel and the planners on Wednesday. They

could benefit from further conferencing, should the DMC consider that to be useful.

Nevertheless, the currently proffered version is, in my opinion, robust and reflects

my understanding of the various technical issues. Whilst the technical issues have

not been agreed universally, the revised set of conditions reflects the large

coincidence of opinions reached, particularly by the technical experts retained by

the applicant and the EPA.17

CONDITIONS (CONT.)

The key changes I have made to the conditions since filing my primary evidence are

as follows:

Included very conservative specific “end of pipe” discharge limits (see table

below) and, as a consequence, deleted the conditions relating to “response

limits” and “compliance limits” – but retained the monitoring of sediment in the

surrounding environment. [new condition number 5]

Parameter Fines Limit ( ˂38µm)

(m3/day)

Rationale

48 hour Suspended Sediment Limit 130 Represents processing limit for ultra fines (2.25%), as

used in “worst case” modelling, but only allowed over

2 days not 7.

7 day Suspended Sediment Limit 83 Represents figures used in original modelling (1.6%

ultra fines), but only allowed over 7 days, not

continuously.

3 month Suspended Sediment Limit 66 Represents actual field data (0.9% ultra fines), and

represents 56% of the modelling presented in the IA.18

CONDITIONS (CONT.)

Amended the overall structure of the conditions to clearly separate operational

standards [new condition numbers 4 – 21] from the management plan

requirements [new condition numbers 39 – 43].

Amended the management plan and monitoring plan conditions to:

Require the final versions of key management plans and monitoring plans to

be generally consistent with currently available drafts (where available) [new

condition numbers 39 & 40 and 22 & 28, respectively] .

Require all management plans to be “approved in a technical certification

capacity” by the EPA and then implemented by the consent holder [new

condition numbers 39 – 43].

Make it clear that no management plan can be relied upon until it has been

certified [new condition numbers 39 – 43].

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CONDITIONS (CONT.)

Amended the Technical Review Group conditions to make it clear that no third

party can be compelled to provide a representative and making it clear how

any such refusal is to be addressed [new condition number 34] .

Added the operator of the Kupe field to the list of TRG participants [new

condition number 34].

Renamed the “Baseline Environmental Monitoring Plan” the “Pre-

commencement Environmental Monitoring Plan [new condition number 22 and

following conditions].

Included additional monitoring of metals as agreed by the technical experts

[new condition numbers 22 and 27 and the PCEMP and EMMP].

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CONDITIONS (CONT.)

Amended the post-extraction monitoring requirements to remove the ability to

shorten the four year period and include the area around the project area [new

condition number 30].

Added Ngaa Rauru and Ngaruahine to the (non-exclusive) list of parties

involved in implementing the “tangata whenua” conditions [new condition

numbers 44 – 52] .

Extended the period within which the Kaitiakitanga Reference Group is to be

established from 4 months to 12 months [new condition number 52].

Provided for the Technical Review Group to be established earlier than initially

proposed [new condition number 34] .

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CONDITIONS (CONT.)

Amended the conditions requiring an up to date plume model to be

maintained, to make it clear that the latest “approved” version must be used in

all analyses [new condition number 25].

Included a condition requiring the removal of all structures at the completion of

mining [new condition number 66].

Undertaking reordering and renumbering.

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CONDITIONS NOT AMENDED

I have not amended the following conditions referred to in the “Conditions Report”:

That the consent holder’s obligations in respect of the “tangata whenua”

conditions fall away if a Kaitiakitanga Reference Group has not been

established (but I have extended the timeframe, as noted above).

Not stated what happens if a management plan is not “approved” by the EPA.

Not made any change to explain what happens if a recommendation of the

Technical Review Group is not accepted by TTR.

Not included any standards relating to acceptable limits of benthic community

changes.

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CONDITIONS NOT AMENDED (CONT.)

Not specified the specific experience and qualifications of technical persons

undertaking specific tasks.

Not included a bond condition.

Not amended the noise standard for protecting marine mammals.

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QUESTIONS FROM DMC MINUTE 34

“1. From a planning perspective, what are the key attributes of conditions that

amount or contribute to an adaptive management approach?

2. Can you suggest any set of principles or guidance for drafting conditions

that do not amount or contribute to an adaptive management approach?

3. It is acknowledged that there will be a suite of conditions that are not able

to be divided between the marine consents and the marine discharge

consents, but some are going to be amenable to such a separation.

Please give your views on this approach. Can you suggest any set of

principles or guidance for dividing up conditions between the marine

consents and the marine discharge consents, including examples?”

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MY RESPONSE TO QUESTION 1

Key attributes of conditions that amount or contribute to anadaptive management approach.

In my opinion, conditions would constitute adaptive management where all the

following apply:

Effects cannot be reliably assessed at the time consent is granted.

There is uncertainty as to the environmental standards that should be

applied.

A staged development, or an experimental approach is followed.

Monitoring of each stage informs future decisions as to how the activity can

be undertaken.

The activity is able to be stopped on the basis of monitoring

during/following a stage.26

MY RESPONSE TO QUESTION 2

Principles or guidance for drafting conditions that do not amountor contribute to an adaptive management approach.

Conditions must satisfy the “Newbury” tests.

Explicit standards are imposed that must be complied with.

These standards can either be “end of pipe” or receiving environment

standards.

The standard can be either quantitative or qualitative.

Management plans can be provided for, provided that they set out “how” a

standard is to be achieved, rather than “what” the standard is.

Monitoring of the environment is provided for.

Reporting of monitoring results is provided for.

Reviews of conditions for specified purposes are provided for.27

MY RESPONSE TO QUESTION 3 – PART 1

Question is in two parts.

PART 1 – Comment on the approach of separating conditions onmarine and discharge consents.

Planner conferencing concluded:

“It is extremely difficult, perhaps impossible, to separate those matters that would

be conditioned on a marine consent from those on a marine discharge consent.”

I have given the matter further consideration as follows.

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MY RESPONSE TO QUESTION 3 – PART 1 (CONT.)

Other than the prohibition on taking an adaptive management approach

with marine discharge consents, the requirements for setting conditions on

marine and marine discharge consents are the same.

One reason for splitting the conditions would be if an adaptive

management approach was proposed for the marine consent.

In my opinion, an integrated approach to manging the effects of the

proposal would tend to favour having one set of integrated conditions.

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MY RESPONSE TO QUESTION 3 – PART 2

PART 2 – Principles for separating conditions on marine andmarine discharge consents.

As a matter or principle, it would not be sensible to have duplicate

conditions on both a marine and marine discharge consent.

In other words if the condition was applicable to both the marine and

marine discharge consent, either in part or in totality, it would not be

separated. Examples would be environmental monitoring (other than that

specifically related to the sediment plume), ongoing engagement and

reporting on monitoring results.

As a matter of principle, conditions that relate solely to the marine

discharge, and would not be imposed unless there was a discharge, could

be separated out and imposed on the marine discharge consent.

Examples would be discharge sediment standards, sediment plume

modelling and monitoring requirements.30

MY RESPONSE TO QUESTION 3 – PART 2 (CONT.)

PART 2 – Principles for separating conditions on marine andmarine discharge consents.

As a matter of principle, conditions that do not relate to the marine

discharge and would be imposed on a marine consent even if there was no

discharge could be separated out and imposed on the marine consent.

Examples would be conditions limiting the maximum amount of extraction

from the seabed and the locations where the IMV is permitted to operate.

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MY RESPONSE TO QUESTION 3 – PART 2 (CONT.)

PART 2 – Principles for separating conditions on marine andmarine discharge consents.

If it would assist, I would be happy to provide a schedule to accompany the

final set of proposed conditions, that identifies those conditions that could

be separated out, and those that would not.

That said, I remain of the opinion that in order to take an integrated

approach, particularly in respect of monitoring the environment, it would be

more appropriate to have one consolidated set of conditions, noting also

that neither consent can be exercised separately from the other.

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CONCLUSION

My key conclusions are:

The proposed conditions are appropriate to ensure that any adverse effects

associated with the project will be avoided, remedied or mitigated.

There is sufficient information to assess the effects of the proposal.

The proposed monitoring and management regime does not constitute

adaptive management.

When assessing the project as a whole, I consider it to be consistent with the

overall purpose of “sustainable management” of section 10 of the EEZ Act.

Subject to the imposition of the proposed conditions, I consider that TTRL’s

application can be granted.

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