Rangitira Developments Ltd v Royal Forest and Bird Protection Society of New Zealand Incorporated

• Jurisdiction: New Zealand
• Judge: O'Regan J
• Judgment Date: 15 July 2020
• Neutral Citation: [2020] NZSC 66
• Court: Supreme Court
• Docket Number: SC 100/2019
• Date: 15 July 2020

Between

Rangitira Developments Limited

Appellant

and

Royal Forest and Bird Protection Society of New Zealand Incorporated

Respondent

[2020] NZSC 66

Court:

Winkelmann CJ, William Young, Glazebrook, O'Regan and Ellen France JJ

SC 100/2019

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Statutory Interpretation — appeal against a decision which had reversed declarations granted in the High Court as to as to the matters that the Buller District Council would need to take into account in determining whether to enter into an access arrangement to enable the appellant to gain access to the mine site across a Reserve and carry out mining activities — whether mining legislation had primacy over the Reserves Act 1977 — Crown Minerals Act 1991

Counsel:

J E Hodder QC and J K Grimmer for Appellant

M C Smith and P D Anderson for Respondent

• A The appeal is dismissed.

• B The appellant must pay the respondent costs of $25,000 plus usual disbursements.

JUDGMENT OF THE COURT

REASONS

(Given by O'Regan J)

Table of Contents

	Para No
Introduction	[1]
Background	[5]
The problem facing Rangitira	[14]
The present proceedings	[21]
High Court and Court of Appeal decisions	[22]
The issue	[24]
Rangitira's “high level” argument	[25]
The position under the Coal-mines Act 1925	[31]
The position under the Coal Mines Act 1979	[35]
Non-application of planning law to coal mining	[38]
Summary of the pre-Crown Minerals Act 1991 position	[40]
Minerals other than coal	[41]
Crown Minerals Act 1991	[44]
Did the Crown Minerals Act retain primacy for mining legislation?	[53]
Section 109 of the Reserves Act 1977	[61]
Local Government Act 2002	[73]
Result	[77]

Introduction

1 This appeal relates to a proposal to develop and operate a coal mine (the Te Kuha mine) in an area of land that is substantially within a local purpose (water conservation) reserve (the Westport Reserve) owned and administered by the Buller District Council (the Council). Water supply for the town of Westport comes from the Westport Reserve.

2 The appellant, Rangitira Developments Ltd (Rangitira), wishes to develop the Te Kuha mine. 1 Rangitira has obtained a mining permit for the mine under the Crown Minerals Act 1991. But to gain access to the mine site and carry out mining activities on the Westport Reserve, Rangitira must reach an access arrangement with the Council. Rangitira sought declarations from the High Court as to the matters that the Council would need to take into account in determining whether to enter into an access arrangement.

3 The High Court granted declarations in the form sought by Rangitira, rejecting the contrary arguments of the respondent, Royal Forest and Bird Protection Society of New Zealand Inc (the Society). 2 The Society appealed to the Court of Appeal, which reversed the High Court decision. 3

4 Rangitira appeals to this Court against the Court of Appeal decision. This Court granted leave to appeal, the approved question being whether the Court of Appeal was in error in setting aside the declarations made by the High Court. 4

Background

5 The Westport Reserve was created in 1951 by the Governor-General pursuant to s 167 of the Land Act 1948. A notice of the reservation was published in the New Zealand Gazette on 16 August 1951. 5 The Westport Reserve was vested in trust in the predecessor of the Council by an Order in Council dated 31 October 1951 as a reserve for water conservation purposes. 6 This was done pursuant to s 9 of the Public Reserves, Domains, and National Parks Act 1928.

6 Both the reservation of the land as a reserve and the vesting of the land in the predecessor of the Council were expressed to be subject to s 8 of the Coal Mines Amendment Act 1950. 7 Under that provision, alienations of land from the Crown were deemed to be made subject to the reservation of all coal on or under the surface of the land and also subject to the reservation of the power to grant coal mining rights over the land under the Coal-mines Act 1925. 8 This was significant because, as discussed in more detail below, under s 4(1)(b) of the Coal-mines Act 1925, the Crown or a statutory office holder could grant coal mining rights over land in respect of which such a reservation had been made without the consent of the landowner. 9

7 Section 16(1) of the Reserves Act 1977 requires the Minister of Conservation to classify all reserves according to their principal or primary purpose. Classification of the Westport Reserve was initially overlooked and did not occur until last year. On 23 October 2019, the Chief Executive of the Council, acting under a delegation from the Minister, classified the Westport Reserve as a local purpose (water conservation) reserve under s 16(1). 10

8 In 1994, the Minister of Energy granted a permit to Milburn New Zealand Ltd to mine an area of land near Westport for coal under s 25 of the Crown Minerals Act. Rangitira obtained that permit in 1995. The permit authorises Rangitira to mine an area of land of about 884 hectares near Westport for coal. Rangitira wishes to build an open-cast coal mine, with a footprint of approximately 116 hectares, as well as an access road and other infrastructure. Almost all of this would be within the Westport Reserve. 11 The balance of the proposed mine is on public conservation land administered by the Department of Conservation.

9 The Society opposes the proposed mine.

10 The Court of Appeal summarised the background to the present litigation and the parties' respective positions on the proposed mine as follows:

[6] The part of the reserve which will be affected by the mine is covered in vegetation. It has extensive areas of intact low forest in which pink and yellow silver pine are important components. Twenty-three species of indigenous birds are identified in the mining permit area, two of which are threatened (the great spotted kiwi and the New Zealand falcon) and five of which are described as “at risk”. There are at risk lizard species. The agreed statement of facts records that ecological advice provided to Rangitira was that the reserve includes indigenous vegetation and habitat of indigenous fauna which are significant in terms of s 6(c) of the Resource Management Act 1991.

[7] The proposed mine site and wider mining permit area is on ranges that have a high degree of natural character. The backdrop ranges are described as having high aesthetic value. There is little evidence of human influence in the area save for one small hut and some evidence of exploratory drilling. The landscape advice provided to Rangitira as part of its application for resource consent was that the mine site has a very high natural character and is part of a mountain range that is high in visual amenity value. The ranges can be seen from Westport.

[8] The proposed mine area is part of a large coal resource. The types of coal that are present have properties that make them high value commodities which attract premium prices. The mine is expected to produce about four million tonnes of coal over its estimated 16-year mine life. Rangitira expects the mining operation to provide employment on site and in Westport for 58 full-time equivalent staff.

[9] The proposed mine is open cast and will remove approximately 104 ha of surface cover from within the reserve. Both Rangitira and the Society agree that without mitigation measures the proposal would result in significant adverse effects. The parties also agree that a mine would have positive social and economic benefits, although they disagree as to their extent.

11 For the purposes of the Crown Minerals Act, a reserve that is owned other than by the Crown is treated as privately owned land. The grant of a mining permit does not entitle the holder of the grant to access the land to which the permit relates or to extract coal from the area subject to the permit. 12 In order to do that, the permit holder needs to enter into an “access arrangement” under s 60 of the Crown Minerals Act with the owner and occupier, in this case the Council. An access arrangement can allow for access to the mine so as to enable the carrying out of mining activities. 13 Rangitira applied to the Council for an access arrangement in 2015. After conducting a process involving public submissions, the Council resolved to enter into an access arrangement on 28 September 2016. The Society then applied for judicial review of the Council's decision. The Council then rescinded its decision to enter into the access arrangement, following an indication that Rangitira intended to seek certain declarations from the High Court to clarify the legal position as to the basis on which the Council could enter into the access arrangement. The Society's judicial review proceeding was discontinued.

12 Because part of the proposed mine is on public conservation land, Rangitira also needed to enter into an access arrangement with the Minister of Conservation under s 61 of the Crown Minerals Act. An application for an access arrangement was made in March 2014. The application was jointly declined by the Minister of Conservation and the Minister of Energy and Resources in June 2018. An application for judicial review of that decision was recently dismissed. 14

13 Rangitira also needs resource consents under the Resource Management Act 1991. The required consents were granted to Rangitira in 2017, but are the subject of an appeal to the Environment Court by the Society. The appeal was placed on hold pending the outcome of the present appeal and the application for judicial review of the Ministers' decision declining to enter into an access arrangement for the public conservation land. 15

The problem facing Rangitira

14 Section 60(2) of the Crown Minerals Act allows the Council,...