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

• Jurisdiction: New Zealand
• Judge: Asher J
• Judgment Date: 23 October 2018
• Neutral Citation: [2018] NZCA 445
• Docket Number: CA126/2018
• Court: Court of Appeal
• Date: 23 October 2018

Between

Royal Forest and Bird Protection Society of New Zealand Incorporated

Appellant

and

Rangitira Developments Limited

Respondent

[2018] NZCA 445

Court:

Asher, Brown and Clifford JJ

CA126/2018

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Mining — access arrangement. Mining — public reserves. Statutory interpretation — implied repeal.

Counsel:

M C Smith and P D Anderson for Appellant

M R G Christensen and E M Gattey for Respondent

• A The appeal is allowed.

• B The declarations and orders made by the High Court are quashed.

• C The questions of law on the first issue are answered as set out in [78].

• D We make no declarations on the second issue.

• E The respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements. We certify for two counsel. F If any order was made as to costs in the High Court, that order is quashed. G Costs in the High Court are to be determined by that Court in the light of this judgment.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Asher J)

Table of Contents

	Para No
Introduction	[1]
Background	[5]
History of the proceedings	[14]
The first issue — must the Council's decision under s 60 be made in accordance with s 23?	[19]
The issue	[19]
The legislative history up to 1991	[28]
Legislative change to the mining regime	[42]
Analysis	[46]
The order creating the reserve and s 5(2)(a)	[52]
Other sections	[57]
Implied repeal	[60]
Section 61	[61]
Section 109	[64]
Conclusion on the first question	[70]
The second issue — what is meant by ss 23(2)(a) and (b) of the Reserves Act?	[73]
Result	[76]
Costs	[80]

Introduction

1 The respondent, Rangitira Developments Ltd (Rangitira), 1 wishes to develop and operate an open cast coal mine in forested hill land near Westport. It has a mining permit for the project covering approximately 884 ha of land. The proposed mine has a footprint of 116 ha, with an additional nine km of access road and 3.28 ha for out-of-pit water treatment infrastructure.

2 Of the 116 ha to be excavated, approximately 104 ha are on reserve land administered by the Buller District Council (the Council). In order to proceed Rangitira needs a range of consents, permissions and arrangements, including an access arrangement with the Council permitting it to develop the mine in large part on the reserve, and it has applied to the Council for such access. The appellant,

Royal Forest and Bird Protection Society of New Zealand Inc (the Society), opposes the development and the granting of access

3 This appeal concerns a decision made in the High Court at Christchurch by Nation J in which he made a number of declarations which accorded with the submissions of Rangitira. 2 The appeal is brought by the Society to challenge that decision and to seek alternative declarations that would place greater constraints on the Council when making its decision on access. At the heart of the case is the interpretation of two Acts, the Reserves Act 1977, which provides for the creation of public reserves and their maintenance and preservation, and the Crown Minerals Act 1991, which provides for the prospecting and exploration for mining of Crown-owned minerals.

4 The parties filed an agreed statement of facts in the High Court, and the facts are also summarised in the High Court judgment. We will briefly summarise the background.

Background

5 The land in question was reserved on 10 August 1951. 3 The reserve was vested in the predecessor to the current Council “in trust, for water-conservation purposes” on 31 October 1951. 4 The area of the reserve is considerably more extensive than that which would be the subject of the proposed mine and was described in October 1951 as covering 4,510 acres. As we have stated, 104 ha of the proposed 116 ha mine footprint would be on the reserve. A small part of the mine footprint would be on land owned by the Crown and administered by the Department of Conservation as stewardship land under the Conservation Act 1987. The mine would be 12 km from Westport.

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.

10 Rangitira requires various consents or permissions to proceed with the mine including multiple resource consents. It made a number of applications to the Council for resource consents on 29 August 2016. The Council appointed Independent Commissioners to consider those applications. On 21 November 2017 the Commissioners released their decision. They granted the consents subject to extensive conditions. That decision was then appealed to the Environment Court by various parties, including the Society. That appeal is currently adjourned pending the determination of other proceedings.

11 Rangitira also required an access arrangement in relation to the conservation land, which is a small part of the proposed mine site. In an application that is entirely separate from the application that is the subject of this appeal, it applied to the Minister of Conservation and Minister of Energy and Resources for an access arrangement over that conservation land. On 16 June 2018 the Ministers declined Rangitira's access request in relation to that conservation land. Rangitira has said it intends to apply for judicial review of that decision.

12 The crucial application for the purposes of this appeal is Rangitira's application to the Council as the body in which the reserve is vested, for an access arrangement over the 104 ha of reserve land and ancillary land vested on trust in the Council and which the Council administers. That application, made under the Crown Minerals Act, was filed on 25 March 2015. In broad terms, Rangitira sought an arrangement permitting it to enter and use the relevant part of the reserve for an open cast coal mine and an access road.

13 At a general meeting on 28 September 2016 the Council resolved to enter into an access arrangement with Rangitira. The agreement was to include appropriate conditions to ensure there were no impacts on the Westport water supply and that anything highlighted by the resource consent process would be addressed. This decision followed a submission process conducted by the Council. The Society had lodged a written submission opposing Rangitira's application. On 13 February 2017 the Society lodged an application under the Judicature Amendment Act 1972 for judicial review of the Council's decision to grant access.

History of the proceedings

14 Following the Society's filing of the application for judicial review, on 12 April 2017 the Council rescinded its earlier decision of 28 September 2016 granting access and Rangitira filed these proceedings under the Declaratory Judgments Act 1908 seeking declarations to resolve issues of law that had arisen.

15 Broadly it can be said that declarations were sought in relation to two issues. The first issue was whether the Council was bound to make its decision in accordance with s 23 of the Reserves Act, or whether in fact s 23 was only a factor to be taken into account when making a decision under s 60(2) of the Crown Minerals Act, and whether the Council's decision under s 60(2) could involve the weighing of other factors such as economic benefits to the region. This involves the interpretation of s 23 of the Reserves Act and s 60(2) of the Crown Minerals Act.

16 The second broad issue involved a number of detailed questions as to how s 23 of the Reserves Act was to be interpreted and applied, in particular whether it required absolute protection of each feature of the reserve, or a balancing of the impact of the works on certain features against enhancement and mitigation measures throughout the broader reserve. There were further overlapping specific questions, including whether damage within the reserve could be balanced against mitigation and enhancement...