Supreme Court confirms mining legislation no longer gets the “special treatment”

The recent Supreme Court case of Rangitira Developments Limited v Royal Forest and Bird Protection Society of New Zealand Incorporated [2020] NZSC 66 has clarified the legal position regarding the relationship between the Reserves Act and other relevant legislation.

Rangitira Developments Limited v Royal Forest and Bird Protection Society of New Zealand Incorporated [2020] NZSC 66 (“the Decision”) concerned a proposal to develop an open-cast coal mine on land situated on the West Coast. A large portion of the land was within a reserve designated as local purpose reserve land, specifically for the purpose of water conservation. Rangitira Developments Ltd (“Rangitira”) obtained a mining permit under the Crown Minerals Act 1991 (“the Crown Minerals Act”) for the proposed mine. Rangitira then entered into an access agreement under section 60(2) of that Act with the Buller District Council (“the Council”), as owner of the reserve land. Royal Forest and Bird Protection Society of NZ Incorporated (“the Society”) sought judicial review of the decision to grant the access agreement by the Council, on the basis that the water, soil and forest conservation requirements under the Reserves Act 1977 (“the Reserves Act”) had not been taken into account. 

Rangitira sought declarations from the High Court regarding what the Council would need to take into account when considering whether it would grant an access agreement under section 60(2) of the Crown Minerals Act. Rangitira’s primary argument was that the Crown Minerals Act attracted the same “special” status as historical mining legislation, and therefore prevailed over the more general Reserves Act. The issue became whether the Crown Minerals Act took precedence over the Reserves Act.

Differing requirements under the Reserves Act and the Crown Minerals Act

One of the objects of the Reserves Act is to preserve and manage areas possessing natural, biological or scenic features or values.

The Reserves Act is strictly worded and requires that the Council, as an administering body of reserve land, administer the reserve for the purpose for which it is held, and no other purpose.[1] In addition (to the extent compatible with the primary purpose), the Council must also protect the biological and natural features of the reserve, and maintain the reserve as a soil, water and forest conservation area.[2]

The purpose of the Crown Minerals Act, on the other hand, is to promote the mining of crown minerals. It provides wide discretion to the owner of land in determining whether or not an access agreement should be granted. Section 60(2) simply states that in considering whether to agree to an access agreement, an owner of land (other than the Crown) may have regard to such matters he or she considers relevant.

Rangitira’s position

Rangitira argued that while conservation requirements of water, soil and forest areas under the Reserves Act were relevant, the Council may also take into account the economic benefits to the community of the proposed mine in accordance with its wide discretion under s60(2) of the Crown Minerals Act.

Rangitira argued that the historical “special status” of preceding mining legislation had been maintained under the Crown Minerals Act. In this sense it was a “one-stop shop” regulating access arrangements for the purpose of mining that prevails over general legislation such as the Reserves Act.

Findings at Court

The High Court found in favour of Rangitira, which resulted in an appeal being lodged by the Society. The Court of Appeal found in favour of the Society and held that the Council must reach a decision on granting access agreements in accordance with section 23 of the Reserves Act, meaning biological and natural features of the reserve must be protected and soil, water and forest conversation areas must be maintained.

The Supreme Court unanimously upheld the Court of Appeal’s finding and ruled that notwithstanding the wide discretion afforded under section 60(2) of the Crown Minerals Act, the Council must still exercise its discretion in accordance with its obligations under the Reserves Act. This meant that the Council was unable to weigh the considerations of section 23 of the Reserves Act against the factor of economic benefit to the community.

Key takeaways

The Supreme Court decision confirms that mining legislation no longer attracts the primacy it once received, and users/developers of reserve land must be mindful not to dig themselves a hole by failing to consider the relevant obligations and primary purpose of the reserve land, as provided for in the Reserves Act.

If you have any questions about the impacts of the above decision or land use law/regulations in general, please get in touch with Jaesen, Sarah or Nicola. 

[1] Reserves Act 1977, section 16(8).

[2] Section 23.