NZCA advice on mining June 2010

Read the NZCA's June 2010 advice on Maximising our Mineral Potential: Stocktake of Schedule 4 of the Crown Minerals Act and beyond.

To: Hon Kate Wilkinson, Minister of Conservation
Date: 28 June 2010

Maximising our Mineral Potential: Stocktake of Schedule 4 of the Crown Minerals Act and beyond

1. I refer to my letter of 19 April and our meeting on 28 April.

Introduction and Scope

2. The purpose of this letter is to bring to your attention some further matters concerning the Stocktake. These were discussed at the Authority's meeting earlier this month and concern aspects of consultation, the status of the General Policy for National Parks and a procedure for removal of areas from Schedule 4 of the Crown Minerals Act. No new substantive matters are raised in connection with the particular areas covered in the Schedule 4 proposals. However, the Authority has noted that a number of considerations, which it did not have the expertise to address in its earlier advice to you, have had extensive media airing. These include concerns about the quality of the geological information on mineral prospects and differing economic valuations of those prospects.

Consultation Requirements

3. The best way to introduce my first point is by reference to the statement of the Hon. Gerry Brownlee on National Radio's Morning Report on Wednesday, 26 May. He then said that there was no consultation requirement in respect of additions to, and removals from, Schedule 4 of the Crown Minerals Act; the Government could have simply made a decision. That statement was legally incorrect. As noted in our earlier letter to you (a copy of which we understand was forwarded to the Minister of Energy and Resources), there is a statutory consultation requirement.

Section 61(5) of the Crown Minerals Act provides:
Before making any recommendation for the purposes of subsection (4), the Minister and the Minister of Conservation must consult to the extent that is reasonably practicable, having regard to all the circumstances of the particular case, those persons the Ministers have reason to believe are representative of interests likely to be substantially affected by the Order in Council or representative of some aspect of the public interest.

4. The Authority's advice and questions relate to this provision. The Stocktake Discussion Paper did not indicate that community input was being sought pursuant to section 61(5). Indeed, it did not mention that provision at all. Accordingly the Authority is anticipating that a separate high level process will take place under section 61(5). The Authority would be interested to know which organisations will be consulted and whether those will include the New Zealand Conservation Authority. The Authority would expect to be consulted, as it is representative of conservation aspects of the public interest.

5. If, on the other hand, it is considered that the Stocktake Discussion Paper was intended to satisfy the statutory consultation requirement, the Authority would be interested to know how the two processes have been reconciled and how the well-settled legal principles of consultation have been complied with in respect of the high level statutory consultation.

Status of General Policy

6. Two further Ministerial statements have served to highlight other issues. In The National Business Review on 28 May, 2010 in an article headed "Poll questions reveal depth of confusion over mining" it was stated that, following a parliamentary question as to whether the Minister of Conservation intended to amend the National Parks Act 1980 to allow mining:-

Environment Minister Nick Smith responded for the minister that the National Parks Act "does not prohibit mining but sets very high environmental tests for mining to be allowed." He then referred to the 2005 general policy on national parks which states that "access arrangements to prospect, explore or mine in national parks will be considered on a case-by-case basis."

Assuming this correctly records what was said, it creates the impression that the General Policy for National Parks ("GPNP") is somehow paramount and enabling. That is not the case. As you will appreciate, while the GPNP has a statutory basis and is a key document in the conservation management planning hierarchy, it can never override legislation. Specifically, it is subservient to the Crown Minerals Act, including Schedule 4. When, pursuant to the National Parks Act 1980, the Authority adopted the new GPNP in 2005 both it and the Department were careful to ensure that it reflected current law. A reading of the full GPNP Policy 10.8 and the introductory text to it makes it abundantly clear that "the case-by-case basis" policy referred to is subject to the Schedule 4 limitation on access arrangements for mining in national parks.

7. The Authority is a strong advocate for the importance of the GPNP in guiding the management of our national parks. It has been careful to ensure that its status and effect is well understood. As is the case with the Hon. Gerry Brownlee's statement referred to above, the Authority is concerned that legally incorrect statements from Ministers may serve to confuse what is already a quite complex debate.

Procedure for Removal from Schedule 4

8. Earlier this month at The Press' South Island Forum the Prime Minister was reported as saying that there was a strong argument for taking the Paparoa National Park out of Schedule 4 protection. While that and other ministerial observations at first glance might appear to pre-empt the analysis and consideration of the submissions and other consultation, the Authority's interest is in ensuring that there is a robust and contestable process for any removal of land from Schedule 4.

9. To that end the Authority would like to make a constructive suggestion about that process. It is difficult to envisage that an area having conservation values that merited its inclusion in a national park should somehow lose those values.

However, in the event that there was land in a national park which appeared to have low conservation values but high mineral potential, the Authority urges the Government to follow a process along the following lines:-

First, decide whether the land in fact has low conservation values. Suffice it to say that this needs to be an objective process with all material information being made available and fully considered.
Second, if it is concluded that the land does have low conservation values, decide whether it can be removed from the national park without affecting the whole. The need for buffer zones and biodiversity connectivity corridors will be just two of the important conservation considerations which would need to be addressed for the purpose of that decision.
Third, if the test in the previous bullet is satisfied, remove the land from the national park in accordance with the parliamentary procedure set out in section 11 of the National Parks Act 1980 and, if need be, reclassify it (for example, as a scenic reserve).
Finally, remove the land from Schedule 4, if that is still legally necessary.

10. By using this procedure the integrity of Schedule 4 as a safe haven for the land in all national parks would not be compromised. That was the intention of Parliament when Schedule 4 was enacted and, as explained in the Authority's earlier advice to you, mining is contrary to the philosophical basis for setting land aside as a national park and the purpose of national parks now enshrined in section 4(1) of the National Parks Act 1980.

11. The Authority also suggests that any proposal to remove an area which is in one of the other protected area categories listed in Schedule 4 (for example, a nature reserve or a marine reserve) should be undertaken only in accordance with a comparable rigorous process.

12. In this context, you may already be aware of the New Zealand Law Society's submission on the Stocktake Discussion Paper. The Society's submission was silent on the specific areas proposed for removal from Schedule 4. Rather it was concerned with the principles of proper process.

The Society's submission concluded as follows:

The key point is that Parliament in 1997 enacted that Schedule 4 land was worthy of a level of protection over and above that offered by the requirements to obtain mineral permits, resource consents or other authorisations. If the list is to be increased, or reduced, it is Parliament that should make that determination.

This submission reflects widespread public concerns about the ease with which Schedule 4, a negotiated covenant with the people of New Zealand, can be eroded. Implementation of the Society's recommendation would likely require an amendment to the Crown Minerals Act. The Authority believes the concerns could also be addressed by adopting the procedure outlined in paragraph 9 above.

The Authority's Advisory Role

13. Finally, the mining debate has prompted me to make a more general observation on the New Zealand Conservation Authority's role under the Conservation Act of providing advice to you as Minister of Conservation. When, together with two other Authority members, I met with you at your office in February, prior to the release of the Stocktake Discussion Paper, we commented that the removal of any area of land from Schedule 4, particularly if it was part of a national park, would be highly contentious. We noted that, even amongst those who were very supportive of New Zealand's mining resources being investigated and developed, there were considerable reservations about downgrading the status of highly-valued conservation land.

My observation is that on many issues the Conservation Act provides you with the opportunity to seek the advice of the Authority proactively, that is, before making policy decisions or developing policy options. It is axiomatic that the Authority cannot proffer advice to you on matters on which it has not been briefed or is unaware.

While the Department would usually be your primary advisor, the spectrum of views represented by Authority members may, in the course of the Government's policy development, provide you with valuable insights. The Authority believes these could add perspective to any advice given to you by the Department. It is very open to such a level of engagement.