Quarrying & Mining Magazine

Forest & Bird loses to council in court

 Louise Ford and Tait Hoby from Atkins Majurey provide an overview of the High Court’s recent decision, Royal Forest & Bird Protection Society of New Zealand Inc v Southland District Council and the release of the Select Committee reports on the Resource Management Reform Bills.

On 6 March 2023 the High Court released its decision, Royal Forest & Bird Protection Society of New Zealand Inc v Southland District Council.

This was a judicial review case, bought by the Royal Forest & Bird Protection Society of New Zealand Inc (Forest & Bird) appealing a decision by Southland District Council (Council) to enter into an access agreement with a subsidiary of Bathurst Resources Ltd (Bathurst) for coal exploration on land owned by Council.

Bathurst sought to establish a new mine in Southland that would be operated by its subsidiary, New Brighton Collieries Ltd (NBCL). Bathurst owns and operates the Takitimu Coal Mine near Nightcaps. The Takitimu mine is running low on coal reserves, which it is expected will soon be depleted.

Bathurst approached the Council in December 2022 to discuss potential exploration and eventual development of a property located between Ohai and Nightcaps, adjacent to State Highway 96. The property is home to a known coal deposit, which Bathurst sees as an economic option to meet continuing demand.

A recommendation report was prepared by Council on this issue, which considered that while there would likely be a high degree of interest from affected stakeholders and members of the community, not all these parties would be directly affected or face consequences. For this reason, the Council determined that the matter need not be considered significant under its policies.

However, they noted that it was “approaching a significance threshold”. Ultimately, the report determined that community views could be heard through any resource consent process associated with mine development. On April 14, Council agreed to enter into the access agreement with NBCL.

Forrest & Bird applied for judicial review of the decision to forgo community consultation on the access arrangement. The decision was judicially reviewed on the basis it was unlawful. Consequently, Bathurst applied to have the decision quashed. Forrest & Bird argued that among other things, the Council had:

  • Failed to act in accordance with the principles of sections 14 and 78 of the Local Government Act 2002 (LGA);
  • That the Council had failed to apply its own Significance and Engagement Policy (Policy);
  • That the Council had failed to consider scientific consensus on climate change; and
  • That the decision was unreasonable.

Regarding the allegation that Council had failed to act in accordance with the principles of s14 of the LGA. Section 14 requires that, among other things, the decision maker have regard for community values, takes into account the interests of current and future communities, takes a sustainable development approach, and takes into account the economic, social and cultural wellbeing of people and communities.

After considering the legislation and commentary on the issue, the Court determined that s14 functions as a guide to decision making, as opposed to a set of prescriptive requirements. Even if the Court had the power to invalidate the decision, Forrest & Bird failed to show that the Council had failed to consider these factors in the first place.

The Court also rejected the Policy arguments made by Forest & Bird, finding that the Council was justified in finding the decision was not “significant”. The reasoning behind this was that the decision was a preliminary step occurring before any development took place.

As such, the Council was correct to find that parties would not be directly impacted or face consequences. Any consequence would come as the result of a resource consent process.

Based on similar reasoning, the Court also found that this was not a climate change decision, as it was only a decision granting access to the Council’s land to explore the possibility of future mining.

Section 78 of the LGA requires that the Council take into account community views. The Court held that s78 was to be considered in light of s79, which requires that the Council may judge how best to comply with s78, and that this must be assessed in light of the “significance” of the decision.

Given the Council was correct in its finding as to “significance” it was also justified in its decision not to undertake community consultation.

Lastly the Court held that the high threshold required to prove unreasonableness had not been met in this instance. The test for unreasonableness in judicial review requires that “a decision is so insupportable or untenable that proper application of the law requires a different answer”. To the contrary, the Court considered it reasonable that the Council had decided there would be later opportunities for consultation during any resource consenting process resulting from the agreement.

Ultimately, the application for judicial review was dismissed.

Select Committee Report on resource management reform

On 27 June 2023 the Environment Select Committee reported back on the Spatial Planning and Natural and Built Environments Bills.

Environment Minister, David Parker was broadly positive about the Select Committee Reports, thanking submitters for their input and commenting that; “The reforms will establish a more efficient, less costly system that allows the housing and infrastructure we need for our communities to thrive, without depleting our natural resources and degrading the state of our environment.”

However, experts have given the Bills a more mixed reception. Specifically, there has been a great deal of concern about the short timeframe for implementation (and associated uncertainty) of the reforms given the number of issues raised with the Bills.

The Environment Select Committee has proposed a number of significant changes to the Bills. However, the structure remains largely the same and the Bills still introduce a large number of new phrases, terms and concepts which have the potential to give rise to extensive litigation.

The Bills are currently before the House for their second reading.

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