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Greenpeace Aotearoa Inc v Hiringa Energy Limited and Ballance Agri-Nutrients Limited - decision

Litigation

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Hiringa Energy Ltd and Ballance Agri-Nutrients Ltd, the respondents, proposed to construct a hydrogen plant in Taranaki. The hydrogen produced will initially be used as feedstock for synthetic nitrogen (urea) fertiliser, at an existing production facility (the Ballance Plant), before transitioning over a five-year period to supply hydrogen fuel for commercial and heavy transport (the Project).

A resource consent for the Project was granted under the COVID-19 Recovery (Fast-Track Consenting) Act 2020 (FTCA) by an expert consenting panel. The intended transition to supplying hydrogen fuel for commercial and heavy transport was the key reason the consent was granted, as it would help to reduce GHG emissions associated with road transport. 

The decision of the expert consenting panel was appealed to the High Court on a question of law by Te Korowai o Ngāruahine Trust (Te Korowai), supported by four hapū (Ngā Hapū), primarily contenting that in granting the consent, the Panel had failed to act in a manner consistent with Te Tiriti o Waitangi as required by the FTCA. 

Greenpeace Aotearoa was also an interested party in the High Court appeal, with its primary concern being the proposed transition from hydrogen for fertiliser to its intended use as fuel for commercial and heavy road transport. Greenpeace considered that the Panel failed to include any condition requiring the transition actually to occur, and that this was an error of law. 

In the High Court, Grice J dismissed the appeal. Greenpeace appealed this decision to the Court of Appeal. At the Court of Appeal, Greenpeace contended that the Panel failed to include any condition requiring the transition actually to occur and this was (1) an error of law, or meant that the Panel erred in assessing the environmental effects of the Project on the basis that the transition would occur; (2) meant that the issue of transition was left to be addressed by the relevant local authority (South Taranaki District Council) and that this was an unlawful abdication of that Panel’s decision-making function under the FTCA; and (3) the Panel failed to actively protect Māori interests because it left a crucial decision about the Project to be made by a decision-maker who, unlike the Panel, was not required to act consistently with the principles of the Treaty of Waitangi. 

The Court of Appeal dismissed the appeal, finding that the Project was not referred to the Panel under the FTCA because it would certainly make a successful transition to utilising the hydrogen for transportation. Instead, it was referred to the Panel in part because, if the intended transition to hydrogen fuel were successful, it would assist New Zealand’s efforts to mitigate climate change and transition to a low-emissions economy more quickly. The conditions of the consent reflected this intention, but did not require a successful transition, as that could not be assured. The conditions of the consent properly matched the justification for the Project’s referral to the Panel. The Court also found the decision to be consistent with the principles of the Treaty. 