Greenpeace and East Cape iwi Te Whanau a Apanui sought a judicial review of the Ministers decision on 1 June 2010 to issue a permit to Petrobras granting it exploration rights over an area in the Raukumara Basin within the exclusive economic zone (EEZ). Key to their challenge was that the Minister had not complied with the requirements of the Minerals Programme for Petroleum (MPP) because he had failed to assess the potential environmental effects of the activity or to take into account New Zealands international obligations, including under the United Nations Convention on the Law of the Sea 1982.
The Court rejected both arguments, saying that they were outside the Ministers obligations under the Crown Minerals Act (CMA) and the MPP. “The Minister would have known of the possibility that offshore oil exploration and drilling might have an impact on the environment. He was entitled to conclude that those were not matters for him to consider in the exercise of his mandated function and powers. He knew they fell within the province of others. Further, there existed a clear statutory scheme and regime, which provided functional separation.” The Judge awarded the Minister and Petrobras costs and said that, even had he found that “reviewable error” existed, he would have exercised the Courts rarely used discretion to decline relief on the basis of the 15 months elapse of time between when the permit was granted and when the legal challenge was filed. No reason was offered for the delay and there had been a clear prejudice to Petrobras which had spent up to $8 million on its exploratory programme, which it had to complete within two years.
The Court (and the Crown) acknowledged there is a hole in the law in that the Resource Management Act 1991 does not apply to activities in the EEZ but outside New Zealands territorial waters. “If questions arise as to the extent to which New Zealand as a State met its international obligations that must be a matter upon which Parliament might choose to legislate. It is not a matter upon which the Court can direct Parliament. Nor could it be for the Minister to “plug any gap” because, in the end, the regulatory and statutory functions designed to deal with risks of harm, general to the environment, have by deliberate policy been entrusted to fall within the ambit of powers vested in other authorities."