West Coast Environmental Network Inc. v West Coast Regional Council and Buller District Council

 
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Decision No. [2012] NZEnvC 42

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge LJ Newhook

Commissioner WR Howie

Deputy Commissioner CM Blom

In the Matter of an Appeal Under S 120 of the Resource Management Act 1991( the Act)

BETWEEN
West Coast Environmental Network Inc (“WCENT”)
(ENV-2011-CHC-000095)

and

Royal Forest and Bird Society of New Zealand Incorporated (“Forest & Bird”)
(ENV-2011-CHC-000097)
Appellants
and
West Coast Regional Council and Buller District Council
Respondents

and

Buller Coal Limited (“BCL”)
Applicant
Participants:

QAM Davies for WCENT

PD Anderson for RFBPS

JF van der Wal and FA Hughes for Respondent

JM Appleyard and B Williams for BCL

  • A. The possible open-cast Sullivan mine adjoining the EMP is not, for the reasons recorded, a part of the “existing environment” that would otherwise trigger a need for assessment of cumulative effects.

  • B. Costs reserved.

DECISION ON PRELIMINARY POINT -“EXISTING ENVIRONMENT”
Introduction
1

An issue was argued as a preliminary question prior to the substantive hearing on appeals against consents granted to BCL to establish and operate an open-cast coal mine on the Denniston Plateau (the Escarpment Mine Proposal “EMP”).

2

The appellants argued that an adjoining proposal of Solid Energy Limited (“Solid Energy”) called the Sullivan Mine should form part of the “existing environment”, such that potential effects on the environment from the EMP should be assessed cumulative to effects from the Sullivan Mine.

3

The Sullivan Mine is not a current operating open-cast mine. There are some abandoned underground workings, and a mining licence under the Coal Mines Act 1979 which has recently been amended to authorise open-cast mining on certain conditions.

S 104(l)(a) and s 3 RMA — relevant effects
4

S 104(l)(a) RMA requires that a consent authority have regard to “any actual and potential effects on the environment of allowing the activity.

5

The term “effect” is defined in s 3 RMA as including “any cumulative effect which arises over time or in combination with other effects”.

6

If the Sullivan Mine was currently operating as an open-cast mine, its effects would undoubtedly need to be considered when determining the appropriateness of

BCL's proposed Escaipment Mine. The question that has arisen in these proceedings however, is whether effects arising from a future operational Sullivan Mine are “other effects” which must be considered in combination with effects from the proposed Escaipment Mine.

7

Counsel for the appellants submitted that the Sullivan Mine needs to be considered as part of the existing environment in the present case. At the core of that submission was citation of the decision of the Court of Appeal in Queenstown-Lakes District Council v Hawthorn, 1 where the primary finding was:

In our view, the word “environment” embraces the future state of the environment as it may be modified by the utilisation of rights to carry out a permitted activity under a District Plan. It also includes the environment as it might be modified by the implementation of resource consents which have been granted at the time a particular application is considered, where it appears likely that those resource consents will be implemented.

8

Clearly, a licence under the Coal Mines Act 1979 is not a resource consent. Neither is it a permitted activity under a District Plan. The appellants nevertheless argued by analogy or extension that the essence of the findings of the Court of Appeal in Hawthorn has application.

Coal Mines Act 1979 and Crown Minerals Act 1991
9

Before analysing the arguments advanced on behalf of each party, it is necessary to describe the application and operation of these two pieces of mining legislation in order to understand the nature of the permission held by Solid Energy, and whether it could come within the parameters of Hawthorn. The proposition advanced by BCL was that it could not, because inevitably there would be a need for resource consents. Put another way, Solid Energy would not be able to establish an open-cast coal mine at Sullivan's based only on the Coal Mines Act licence.

10

The purpose of the Coal Mines Act 1979 is:

… to consolidate and amend the law relating to coal prospecting and mining and to regulate the coal mining industry to ensure the proper and efficient development and use of New Zealand's coal resources.

11

As was held by the Court of Appeal in Stewart v Grey County Council the 2 predecessor legislation the Mining Act 1971 was intended to be an exclusive code in respect of the use of land for mining purposes under Mining Licences granted under that Act. A question that must be asked is as to whether the same remains true under legislation governing the licence held by Solid Energy. This requires an examination of relevant provisions of the Crown Minerals Act 1991 as to coal resource considerations, and the Resource Management Act 1991.

12

It was the position of BCL that a Coal Mines Act licence would authorise little more than the equivalent of land use activities (s 9 RMA).

13

That is, activities governed by ss 13, 14, and 15 RMA are not authorised by a Coal Mines Act licence.

14

The Coal Mines licence (“ CML”) No. 37161 for the Sullivan Mine was granted to the Coal Corporation of New Zealand (now Solid Energy) under s 101B(b) of the Coal Mines Act 1979, which provided as follows:

101B Grants of licences to Corporation

The Corporation is hereby granted the following licences:

(b) In respect of each mining operation described as such in an agreement, a coal mining licence under section 41 of this Act on the conditions contained in Schedule 4 to this Act and for the term specified in the agreement.

15

The agreement in this case was one between the Crown and Coal Corporation dated 31 March 1988 when the latter became a State Owned Enterprise and received by transfer the assets of State Coal Mines regulated by Part 4 of the Act.

16

By s 55 of the Coal Mines Act 1979, a licencee may undertake certain activities:

  • 55 Rights of holder of coal mining licence

  • (1) Subject to this Act, a coal mining licence shall authorise its holder and his agents and employees on his behalf to -

    • (a) Work and mine for coal on or under the land in respect of which the licence was granted; and

    • (b) Take and remove from or under the land all such coal and dispose of it; and

    • (c) Do all acts and things that are necessary to effectually carry out coal mining operations on or under the land.

  • (2) Subject to this Act, the holder of a coal mining licence shall-

    • (a) Be entitled to use, occupy, and enjoy the land in respect of which the licence was granted for coal mining purposes; and

    • (b) Be the owner of all coal lawfully mined from the land under the licence.

  • (3) The rights conferred by this section shall be exclusive rights for coal mining purposes in relation to the land in respect of which the coal mining licence was granted.

17

The rights so granted appear quite broad, indeed arguably broader than might be the case under the successor legislation Crown Minerals Act 1991. It is necessary to look at the transitional provisions of that Act to see what became of licences under the Coal Mines Act 1979.

18

S 107(1) of the Crown Minerals Act 1991 provides that:

  • 107 Existing privileges to continue

  • (1) Except as provided in this part, every existing privilege shall continue to have effect after the date of commencement of this Act as if the Act which applied to the privilege before that date continued in force, and as if-

    • (a) Subject to subsection (3), the holder of the privilege continued to have the same statutory rights as the holder would have had if this Act and the Resource Management Act 1991 had not been enacted; and

    • (b) Subject to subsection (3), the holder of the privilege continued to have the same statutory obligations as the holder would have had if this Act had not been enacted; and

    • (c) Subject to section 108, every person having any function, power, or duty relating to the administration of the Act which applied to the privilege before that date continued to have those functions, powers, and duties; and

    • (d) The Environment Court and any other body having any function, power, or duty connected with the determination of any dispute under the Act which applied to the privilege before that date continued to have those functions, powers, and duties;(a)

    • ...

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