New Zealand SC rejects an appeal seeking access to carry out coal-mining in a water conservation reserve

Supreme Court of New Zealand:  The Full Bench comprising of Winkelmann CJ, William Young, Glazebrook, O’Regan and Ellen France JJ., unanimously rejected an appeal from a coal company seeking to carry out coal-mining activities in a reserve established for water conservation purposes.

Appellant had obtained a mining permit under the Crowns Minerals Act, 1991 (CMA), but to access the site and carry out mining activities, it had to reach an access arrangement with Buller District Council, which owned and administered the reserve. Rangitira had approached the High Court seeking declarations which the Council would have to take into account while considering the access arrangement and obtained an order in its favour. But the respondent’s appeal succeeded at the Court of Appeals, and that decision had been challenged in the present case.

The appellant claims that the Crown Minerals Act would assume primacy over the Reserves Act, 1977, which would not have allowed for the access arrangement sought by it, since the mine’s impact would not be compatible with the purpose of the reserve i.e., water conservation. It claimed that the CMA is a “one-stop shop” regulating access for mining, which prevails over acts of general legislation such as the Reserves Act.

Section 60 (2) of the CMA states, “In considering whether to agree to an access arrangement, an owner or occupier of land (other than Crown land) may have regard to such matters as he or she considers relevant.”

Rejecting the appellant’s main claim, the Court decided that nothing in the CMA could limit the Council’s obligations under the Reserves Act. The Council enjoys a wide freedom and has the sole decision as the owner to decide whether to enter into an access arrangement or not (as per Section 60 (2) of the CMA), since the access is sought over land in a reserve. It differentiated the CMA from earlier legislations which it had replaced upon its enactment  on this very ground, holding that mining permits and licenses under the CMA do not include the right to access the land and the power and permissions to do so but only the right to extract coal. 

Furthermore, a miner under the CMA, after securing mining rights, would require an access arrangement from the owner and occupier of the land and a resource consent from the relevant authority. “There is no ability for the Crown or a statutory office holder to mandate mining for coal or other minerals in such a reserve,” unlike the earlier Acts, where only a single public official’s decision could allow the holder of a mining license to legally extract coal from a mine within a reserve. It upheld the Court of Appeals’ decision and ordered the appellant to pay the respondent $25,000 along with usual disbursements. [Rangitira Developments Limited v. Royal Forest and Bird Protection Society of New Zealand Incorporated, [2020] NZSC 66, decided on 15-07-2020]

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