Tait Hoby and Louise Ford from Atkins Holm Majure provide an overview of the Environment Court’s recent decision on Royal Forest & Bird Protection Society v West Coast Regional Council & Buller District Council and a brief update on Minister Parker’s announcement regarding the Select Committee inquiry into seabed mining.
Royal Forest & Bird Protection Society v West Coast Regional Council & Buller District Council [2023] NZEnvC 68.
On 19 April, 2023 the Environment Court released its decision on Royal Forest & Bird Protection Society v West Coast Regional Council & Buller District Council (Decision). The Decision was a successful appeal by Forest & Bird against a decision to grant Stevenson Mining (Applicant) consent for a proposed open cast coal mine in Te Kuha, located at the southern end of the Ngakawau Ecological District (Application).
The mine site falls within a water conservation reserve and is predominantly covered in indigenous flora and fauna, which is somewhat naturally shielded from the impacts of surrounding land uses. Roughly 12 hectares of the proposed 884-hectare mining land is within Department of Conservation administered land and the remainder is administered by the Buller District Council and operating as a public reserve.
The experts described the site as being in a close to “pristine condition”, being very near to its original state prior to the introduction of foreign species. Te Kuhu also supports the neighbouring species rich ecosystem of Heaphy Valley and is home to a variety of species of concern.
The proposed mine itself would consist of two mine pits, placement areas for overburden, engineered landforms, stockpile areas, diversion drains, and in-pit slumps. The proposed timeframe was for the mine to be producing coal for 16 years, with a further 10-year period to complete aftercare and other post-mining activities at the site.
The decision
Opposition to the proposal included concerns regarding the destruction of high value natural areas, the habitat of threatened species, the difficulties of restoring the site to its pre-mining condition, possible effects of climate change, concerns regarding highly visible landscapes and outstanding natural landscapes, and the effect on waterways and aquatic habitats.
A key issue in dispute was the adequacy of the Applicant’s rehabilitation plan for the area. The Applicant planned to take several steps in order to offset the potential environmental disruption resulting from the Application, these included:
• The use of direct vegetation transfer, to replace lost flora;
• A predator control plan targeting a variety of pests; and
• A biodiversity compensation plan, aimed at offsetting biodiversity loss by increasing the biodiversity in other areas.
While evaluating the Applicant’s rehabilitation plan, the Court noted that the specific wording of the policies in Chapter 7 of the West Coast Regional Policy Statement (RPS) and the highly prescriptive approach taken by the National Policy Statement for Freshwater Management (NPSFM) on biodiversity prevented them from taking the compensatory measures, predator control plan, and vegetation transfer into account as positive effects under the Resource Management Act 1991 (RMA).
While the Court acknowledged the benefits of the rehabilitation plan, the reduction in plant species resulting from the Application ran directly contrary to Policy 7.2(d) of the RPS. Furthermore, Policies 7.2(b) and (c) require that any activities be carried out in a way that does not reduce the threatened environment classification of the ecological district to a level of two or below.
However, there were several factors in favour of granting consent, such as provisions of the Buller District Plan, which had a focus on “ensuring an appropriate balancing as between providing for the economic and social wellbeing of the community and ensuring that the impact of mining activities is mitigated” combined with the economic benefits of the Application for the Region. Despite this, the Court found that none of these overcame the barriers to consent in the higher planning instruments, such as the NPSFM and the RPS.
The Court noted that it was for the Court to decide what weight matters identified in section 104 should be given when considering an application. Ultimately, finding that the positive effects of the rehabilitation plan could not outweigh the negative impacts of the Application.
Implications
This decision illustrates the weight courts are willing to place on higher planning instruments, such as regional or national policy documents, and therefore the importance of taking these into account when planning a proposal or preparing an application for resource consent. Simply mitigating the effects of an application is not enough, it must be done in a way that satisfies the requirements of the relevant planning framework.
Select Committee inquiry into seabed mining
On Friday 5 May the Minister for the Environment David Parker proposed a Select Committee inquiry into seabed mining.
Parker has said the inquiry would consider potential risks and benefits of seabed mining and whether changes to the domestic regulatory framework are needed.
Parker also announced that the Labour party would not be supporting Maori Party co-leader Debbie Ngarewa-Packer’s member’s bill banning seabed mining completely. He cited the fact that the Bill would “cut off much of New Zealand’s current gas supply, threaten our energy security, and cause considerable reputational damage to the country.”
