Mike Doesburg, Partner at Wynn Williams who specialises in environmental and resource management law.
As the meme goes: in 1920 we took children out of the coal mines, in 2020 the most popular video game on the market is Minecraft – the children yearn for the mines.
In fact, steps were taken to remove children from mines earlier than the 1920s – the Mines (Prohibition of Child Labour Underground) Act 1900 was the first step in the United Kingdom.
Alas, I am already off topic.
Mining in New Zealand has been getting a lot more media attention recently. This seems in part due to the industry having a new champion (The Honourable Shane Jones), as well as a realisation that our country has significant mineral resources, but they are incredibly tightly regulated by New Zealand’s environmental regime.
Mining is an intensive land use and the potential for adverse effects on the environment from mining is recognised. Mining can permanently change the environment, including disturbed land, overburdened dumps and tailing dams. Land and water can become contaminated (the Tui Mine in the Kaimai Range is still identified as one of New Zealand’s most contaminated sites).
Many other activities can have significant and permanent effects, but nothing seems to curl the toes of environmentalists like the word “mining”. This aversion to mining may stem from the fact that a large proportion of New Zealand’s mining is coal, which has the double-whammy of environmental effects of extraction as well as environmental effects when it is burnt (either in New Zealand or overseas).
Whatever the cause, mining activities are tightly regulated in New Zealand under the Resource Management Act 1991 (RMA), though that seems likely to change. This article explores key environmental regulation on mining and the proposed changes on the horizon, before looking to the future.
Environmental regulation
Like any activity, mining is subject to the general restrictions on the use of land, take and use of water, and discharges under sections 9, 14 and 15 of the RMA. Mining proposals often involve a complex suite of land use, water and discharge permits. It is uncommon for mining to be a permitted activity – it is much more common for resource consent to be required as a discretionary or non-complying activity. (Some plans specify mining as a prohibited activity, at least in relation to certain areas.)
Additional complexity is added by national direction. National Policy Statements and National Environmental Standards can add further restrictions. When originally introduced, the National Environmental Standards for Freshwater Management 2020 (NES-F) restricted activities within proximity to wetlands, or those that reclaimed the bed of any river. For large-scale mining activities such impacts can be unavoidable. This has been recognised in additional national direction (or amendments to national direction). For example, in relation to the proximity to wetlands, the NES-F was amended in 2023 to create a consenting pathway for mineral extraction activities. However, such consents can only be granted if the relevant council is satisfied the mineral extraction:
• will provide significant national or regional benefits
• has a functional need to be in that location
• and applies the “effects management hierarchy”.
Coal mining is treated differently. Consent can only be sought for coal mining under the NES-F in proximity to wetlands for the continuation or expansion of coal mines that were lawfully established before 5 January 2023. After 31 December 2030, consent can only be sought under the NES-F for coking coal (also only for continuation or expansion of existing mines).
A similar approach is taken by the National Policy Statement for Indigenous Biodiversity (NPS-IB). The NPS-IB requires subdivision and use and development to avoid adverse effects on significant natural areas. An exception is provided for mineral extraction that:
• provides national public benefit that could not otherwise be achieved using resources within New Zealand
• applies the effect management hierarchy
• has a functional or operational need for the activity in the location
• and there are no practicable alternative locations.
These requirements set a high threshold, but again, the exception only applies to operation and expansion of lawful coal mines and, after 31 December 2030, only coking coal mines.
The reality is that obtaining resource consent for any significant new mine is not just complex, but a costly and time-consuming undertaking.
Proposed changes
The National and NZ First Coalition Agreement confirmed that a priority was to amend the RMA to make it easier to obtain consent for primary sector activities, including mining.
The first tranche of those amendments was introduced in May 2024 with the Resource Management (Freshwater and Other Matters) Amendment Bill. Among other things, the Bill proposes to align the consenting pathway for coal mining with other extractive industries (i.e. allow new coal mines to use the consenting pathways). The Bill does not change the requirement that beyond 31 December 2030, only coking coal mines can use the pathways.
In August 2024, the Government provided details on its second tranche of RMA reform, with further changes for infrastructure, housing and the primary sector. While these changes are not expected to be significant for the mining sector, the Government has also signalled its intention to review existing National Policy Statements and promulgate others.
National Policy Statements sit at the top of the RMA policy hierarchy and play an essential role in council plan-making and resource consenting. Recent Supreme Court decisions have confirmed the importance of National Policy Statements and revealed how limiting they can be for large-scale projects. Revisiting and rationalising National Policy Statements provides a real opportunity to provide greater balance between enabling extractive activities and managing their adverse effects on the environment.
Finally, the Government has also announced changes to its Fast-Track Approvals Bill. That Bill has been controversial, notably because of the concentration of decision-making sitting with Ministers. One of the recently announced changes is to provide that expert consenting panels will be the final decision-makers, not Ministers. The Bill has proved popular – 384 projects have applied to be included in the first group of proposals that will be able to access the Bill. Of those 384 about five percent were mining projects, and five percent were quarrying.
Looking to the future
While recently announced changes are encouraging, it will take time for changes to work their way into the resource management system. Changes to remove roadblocks in consenting pathways will take effect quickly, but other changes will take much longer to influence regional and district plans and restore the balance in consenting processes.
An important point that is often overlooked is that mining projects can be a catalyst of significant environmental gains. Environmental enhancements that go hand-in-hand with mining proposals often achieve benefits in excess of the detriment – indeed “net gain” is the usual target for ecological effects. There seems to be an obvious win-win solution if national direction were to move away from its obsession with “avoiding” adverse effects and instead provide for appropriate management of effects, and greater recognition of positive environmental effects.
Looking to the longer term, the Government has proposed the repeal and replacement of the RMA with new law that is based on private property rights.
It is unclear what that will involve, but it offers an opportunity to revisit our environmental framework and reconsider the balance between enabling activities and protecting the environment.
