KIWIS AGAINST SEABED MINING AGAINST TARANAKI DAILY NEWS

The Discussion

Analysis

General comment

15. As a general comment it is to be noted that these pieces are stated to be statements of opinion. The authors are disclosed to have an interest in TTR, and therefore a financial interest in the mining going ahead. The articles therefore fall plainly under Principle 5 which states that while the requirements for a foundation of fact pertain, balance is not essential. Any reader will understand that the authors have strong feelings against the objectors.

16. It is thus only statements that plainly have no factual foundation in a way which should be obvious to the publisher, which warrant consideration.

The headings

17. Headlines must accurately and fairly convey the substance of a key element of the report they are designed to cover. However, they cannot contain a clearly false statement.

18. The first article (online) was headed A Lack of ‘Scientific Credibility’ to Opposition to Seabed Mining in New Zealand. The article then goes on to support the proposals by TTR to mine sand from the seabed in an area in the South Taranaki Bight. The article proceeds to seek to justify the contents of the heading, and to that extent the heading clearly conveys a key element of the article.

19. The essence of the heading, that there is, in general terms, a lack of scientific credibility to the opposition, is clearly highly contentious. It is obviously a statement of opinion. While there are undoubtedly reputable scientists who oppose the seabed mining, the credibility of their views is a matter of contention for those in support of mining. Given that this is an opinion piece, we are not able to agree with the complainant that the heading crosses the line. There is indeed no way for us to determine whether there is a factual foundation or there is not. The article does reflect the heading.

20. For the reasons already set out in relation to the online heading of the first article, the print heading to the second article has not been shown to be without factual foundation. The scientific credibility of the claims about the seabed mining is plainly an issue. One side says it is right and the other wrong.

21. We do have concerns about the online heading of the second article, stating that there is no factual evidence for the opposition to seabed mining. That statement is questionable, as there is plainly a lot of factual evidence which sets out why certain shellfish, mammals and other organisms may be harmed by seabed mining.

22. However we recognise that the plainly partisan nature of the opinion pieces will lead readers to approach general statements about the merits of the respective positions with a grain of salt, understanding that they are works of advocacy

Agreed conditions

23. It was complained that the following sentence that comes under the heading was false:

The DMC’s approval includes a comprehensive set of agreed conditions designed to sustainably manage the resource and protect the marine environment from any adverse effects.

24. The report does not say who has agreed to these conditions. It could easily be read as indicating that the DMC [Decision Making Committee of the Environmental Protection Authority] is the body that has agreed the conditions. It does seem as if the DMC did set out various conditions that were acceptable to it. We are not prepared to find that in an opinion piece this is misleading. In particular we do not think that it can be clearly inferred that what is being said is that the conditions were agreed to by the submitters. Plainly the DMC approval had followed a contested hearing, with submitters opposing the application.

The Court cases

25. The next statement complained about reads as follows:

TTR has faced sustained opposition to the development of seabed mining off the Taranaki coast. Despite this, TTR has prevailed in the EPA hearing by having marine and discharge environmental consents granted in 2017, by the High Court ruling 28 to 1 in TTR’s favour in 2018 and the Court of Appeal ruling 9 to 6 in TTR’s favour [in] 2020 on our opponent’s challenges to the EPA’s grant of our consents.

In April 2020, TTR lodged a notice of appeal on the Court of Appeal’s judgment on the six points of law to the Supreme Court at the hearing taking place in Wellington in November 2020.The Supreme Court’s decision is likely to be later in 2021.

26. The last quoted paragraph is correct. There is an appeal to the Supreme Court where a decision is awaited. The appeal was lodged by TTR.

27. It was also correct for it to be stated in the first quoted paragraph that TTR had prevailed in the EPA hearing by obtaining consents in 2017.However, what in our view is plainly misleading in that first quoted paragraph was for it to be implicitly stated that the High Court and Court of Appeal had also ruled in TTR’s favour. By any analysis TTR failed in the High Court and the Court of Appeal. In both of those courts the EPA decision was not upheld, and the TTR applications were referred back to the EPA to be considered in the light of the judgment. Costs were awarded against TTR and in favour of those who sought to overturn the EPA’s decision, and they had to be paid by TTR. This was the clearest of indications as to the failure of TTR in these hearings, and the success of TTR’s opponents.

28. That is not to say that TTR was entirely unsuccessful and its opponents entirely successful. The efforts on the part of TTR’s opponents to have the application for a marine consent and marine discharge consent to be declined by the courts, were dismissed. The application by TTR has been remitted back to the EPA where it will have to be determined again.

29. Despite avoiding being denied a consent by the appeal courts, TTR has failed in the High Court and Court of Appeal. Its victory in the EPA has been overturned and it has to start again. It has succeeded in obtaining leave to appeal to the Supreme Court, but the substantive outcome of that appeal is awaited.

30. The references in the first stated paragraph to 28 to 1 in the High Court and 9 to 6 in the Court of Appeal may have some technical justification, but in the end they give a misleading impression of victory to TTR, when TTR lost. It should have been obvious to Stuff that the statements implying success in the High Court and Court of Appeal were wrong. It is obvious in the brief summaries in the decisions. It was obvious from the fact that TTR was appealing to the Supreme Court. It was obvious because Stuff itself had published an earlier article about those cases headed “No seabed mining in Taranaki Waters as court decision overturns EPA consent”.

31. Despite the leeway that we give to opinion pieces, particularly of the “they said, you said” type, Stuff publishing such an obviously wrong statement requires an uphold on that particular paragraph.

Statement about no adverse environmental outcomes from mining

32. Mr Eggers’ article also contained this statement:

There is no evidence, as presented by a range of independent institutions and TTR’s marine experts to the EPA, that seabed mining or TTR’s proposed operations are a threat to, or have any adverse outcome on, near shore environment or beaches, reefs or marine ecologies, marine mammals including rare whales, critically endangered Hectors or Māui dolphin populations, blue penguins, fish or any marine life.

33. The evidence might be seen by TTR as contestable, but there was no basis for Mr Egger to assert, as he has, that there was no evidence of adverse effects on the various aspects of the environment referred to. This is plainly demonstrated by a number of paragraphs from the EPA’s majority decision. The EPA decision, which was in favour of TTR’s application, itself recorded that there would be some adverse effects on organisms nearby the mining site. The qualification to there being no evidence “as presented by a range of independent institutions and TTR’s marine experts” does not ameliorate the factual error. The general sense of the statement is that it was uncontested that there were no adverse effects.

34. The fact that it was contested can be seen particularly from paragraph 404 of the EPA decision. It is recorded by the EPA that the Benthic community within 2 to 3 kilometres of the site was likely to be significantly impacted by sediment disposition. There are also at paragraphs 406 and 429 references to effects on the reefs and fauna and fish on the reefs, although it is made clear that those effects would be minor or moderate. There will be some effect on blue whales in the area (paragraph 471) and some effects on Māui dolphins (paragraphs 477, 546, 549, 552 and 559).There will be some effect on Hectors dolphins (paragraph 558) and on blue penguins (paragraph 579), and on seabeds (paragraphs 579-580).It is not suggested that any of these effects will necessarily be major, but there will be some effects.

35. The Council is reluctant to get involved or express views on matters of scientific opinion. However, plainly the EPA decision, upon which TTR has relied in the High Court and Court of Appeal, shows that there will be adverse effects on the environment. Indeed, it might be thought that it was a matter of common sense that if there was mining of the seabed, that organisms close to the mined seabed will suffer some effects, although they may be minor. Giving as much latitude as we can to the fact this was an opinion piece, this paragraph went too far. There was plainly no factual basis for the assertion that was made. The lack of a factual foundation for the claim of “no evidence” of effects on adjacent sea bed should have been evident to Stuff whose staff had long been dealing with this hard-fought issue.

36. We turn now to the second article. We have already commented on the heading. The statements of opinion in this article are far more general than in the first article. There is reference to the rhetoric of opponents being unfounded and opinion pieces opposing the mining beggaring belief. There is reference to activists spreading misinformation and unqualified statements. However, this article is written at a far more general level and has not put forward any statements of fact that are plainly unfounded. It is in the nature of a true opinion piece. Although we can understand the opponents to the mining being aggrieved at some of the statements made, we do not consider that any of them have gone so far as to constitute a breach of Media Council principles.

Conclusion

37. The Media Council supports Stuff’s efforts to provide balance in the articles that it publishes, so that the views for and against the proposed seabed mining can be properly aired. We do not wish to discourage that practice in any way. Indeed the Taranaki Daily News is to be congratulated for giving balanced coverage to an issue that is so important to the local community. We do not wish to discourage editors from publishing opinion pieces on difficult scientifically contentious issues. If Stuff had acted promptly to correct the plain errors when they were pointed out this might well have changed our decision to uphold. However it made no correction, deletion, or acknowledgment of an error.

38. Opinion pieces cannot contain plainly incorrect facts that are obviously without foundation. It was plainly incorrect for the writer of the first article to imply that TTR had had success in the High Court and Court of Appeal. On any objective view TTR had failed and Stuff should not have allowed the statement to be made.

39. Further, Mr Eggers crossed the line when he went so far as to assert that there was no evidence of adverse effects on marine life in the vicinity of the area mined. There plainly was evidence that mining will disturb sediment and that disturbed sediment will smother or affect live organisms. We do not comment on whether the effects should be treated as not severe, and on balance tolerable. That may or may not be so, and is a matter for the courts and the EPA. However, we are clear that the evidence available shows the statement of no “adverse effect” to be plainly wrong. Stuff had previously reported on the EPA decision and the appeals, and should have realised that. Given these particular one-off circumstances, the complaint is upheld on the second ground.

40. In respect of the other complaints about the headings and other paragraphs to which we have referred, the complaints are not upheld

Result

41. The complaint is upheld in relation to the statement about the results in the High Court and Court of Appeal. The complaint about the statement of there being no evidence that seabed mining or the proposed operations will have any adverse effect on nearby marine life and ecologies is also upheld. The other aspects of the complaint are not upheld.

Media Council members considering the complaint were Hon Raynor Asher, Rosemary Barraclough, Liz Brown, Jo Cribb, Sandy Gill, Jonathan MacKenzie, Hank Schouten, Marie Shroff and Tim Watkin.