Crown Minerals reforms

Submissions on the Crown Minerals (Permitting and Crown Land) Bill close on 2 November 2012.

The Bill amends the Crown Minerals and other conservation-related Acts, to (according to its own purpose clause) “promote prospecting for, exploration for, and mining of Crown owned minerals for the benefit of New Zealand ...”.

Some of the things in the Bill will implement promises made by the government to New Zealanders in July 2010, when, after consultation about mining in national parks, decisions were made confirming that no land would be removed from Schedule 4 to the Crown Minerals Act. See further: http://www.beehive.govt.nz/release/no-land-be-removed-schedule-4.

But the Bill also contains proposals that will put conservation values at risk, and which could affect decision-making on Bathurst Resources’ applications for mining access on the Denniston Plateau.

The gist of the Bill is that some good things promised in July 2010, are there, but counter-balanced by some other things, which are poor.

It undermines previous public conservation gains, and poses some real risks, including risks for our Denniston campaign, and the ability to properly protect in future the large proportion of conservation land held in stewardship, awaiting a decision on its conservation value and classification.

Submissions

Forest & Bird will be making a submission. You may like to join us, and if so, here are some key points you may wish to make about the Bill, and guidance for making a submission to Parliament if you haven’t done this before.

Key points

Decisions about mining access to public conservation lands

The Bill deals with two types of decisions. The first of these affects mining access.

The Bill provides for access applications for mineral development affecting Crown land to be considered by both the land-holding Minister, and the Minister of Energy and Resources.

This means that it requires the Minister of Energy to join the Conservation Minister, in decision-making about mining and mineral-related access. At the moment, the decision-maker is the land-holding Minister only.

This undermines an important step forward that was taken in 1991 when, under the new legislation, the Minister of Conservation (and other Ministers administering Crown land) were given the same rights as private land owners to decide, in accordance with the Act, what may happen on public conservation land.

We do not support the joint decision-making proposal. The status quo should be kept.

A new ‘economic benefits’ factor for access decision-making

The access decision-making Ministers will be required to have regard to a new ‘economic benefits’ factor.

Clause 31(6) would add a new para (da) to section 61(2) of the Act: “the economic and other benefits of the proposed activity in relation to which the access arrangement is sought”.

The current subsection reads:

“In considering whether to agree to an access arrangement in respect of Crown land, the appropriate Minister shall have regard to—

(a) the objectives of any Act under which the land is administered; and
(b) any purpose for which the land is held by the Crown; and
(c) any policy statement or management plan of the Crown in relation to the land; and
(d) the safeguards against any potential adverse effects of carrying out the proposed programme of work; and
(e) such other matters as the appropriate Minister considers relevant.”

For public conservation land, in our view it would only be appropriate to consider economic and other benefits to the extent that these are compatible with the over-riding objectives and purposes for which that land is held by the Crown, set out in the Conservation Act.

The proposed draft clause does not do this. It makes economic benefit a factor to be had regard to and weighed in the balance, alongside the existing factors.

We do not support this.

Decisions about conferring Schedule 4 protected status on conservation lands

The other type of decision-making altered substantially by the Bill is decision-making about Schedule 4.

The current statutory processes under various Acts, where the Minister of Conservation is permitted to declare land to have the highest kinds of protected status (equivalent to Schedule 4 status), are amended to give that power to the Governor-General by Order in Council.
•    Section 18(1) of the Conservation Act 1987 permits the Minister of Conservation to declare that land is to be held for the purpose of a conservation park, an ecological area, a sanctuary area, a wilderness area, or for any other specified purpose. Clause 58 of the Bill removes the references to a sanctuary area and a wilderness area and instead this power is given to the Governor-General: new section 18AA, clause 57. The same provision is made for RAMSAR wetlands.
•    Clause 67 inserts a new section 16A to the Reserves Act 1977, which provides for the classification of reserves after the commencement of this Bill. Reserves are currently classified by the Minister of Conservation. Under new section 16A, the Minister will be able to classify recreation, historic, and scenic reserves, but nature reserves and scientific reserves will be classified by Order in Council, as will wilderness areas within a reserve: clause 69.
•    Clause 71 removes and replaces the current Wildlife Act process where wildlife sanctuaries are made by proclamation of the Minister of Conservation; again, the Governor-General will do this by Order in Council.
The drafting looks as if the Minister still holds responsibility, for example: “The Governor-General may, by Order in Council made on the recommendation of the Minister ...”. However, Orders in Council are, effectively, a Cabinet decision, not a Ministerial one.

According to the Cabinet office website:

“By convention, the Executive Council comprises all Ministers of the Crown, whether those Ministers are inside or outside Cabinet. The Governor-General presides over, but is not a member of, the Executive Council. When a new Cabinet is sworn in, Ministers are first appointed as Executive Councillors and then receive warrants for their respective Ministerial portfolios.

“The principal function of the Executive Council is to advise the Governor-General to make Orders in Council that are required to give effect to the Government’s decisions. Apart from Acts of parliament, Orders in Council are the main method by which the government implements decisions that need legal force.”

The Minister would put up a recommendation in a Cabinet paper, on which all of her colleagues would decide, which is then confirmed by the Governor-General.
In July 2010, the explanation given for this was:

“To ensure that all considerations, including renewable energy uses, tourism and the mineral potential of the area are considered up front, conservation classification proposals will be signed off by Cabinet in the future (currently the Minister of Conservation makes those decisions alone).”

Both the minerals under the land, and the conservation land on top, are public assets. But it won’t be good for nature, because it risks land only being protected for nature where it isn’t good for anything else.

A very large chunk of public conservation land remains held in stewardship, awaiting classification. By removing the Conservation Minister’s responsibility to decide on those classifications, this reduces that process to a straight contest between competing ideals.

That’s not the way we need to head: it’s never been clearer that we need environmental bottom lines.

Acknowledging that conservation land is held in trust, for its own purposes set out in that Act, and classified according to those purposes by the responsible Minister, is one way of ensuring that this is acknowledged and honoured.

The Minister can be expected to consult her colleagues in the usual way.

“Significant” access applications for mining on public conservation land to be publicly notified

Clause 32 inserts new section 61C into the Crown Minerals Act, headed “Access arrangements in respect of mining where Minister of Conservation is the appropriate Minister”.

It applies if an application for access is made in respect of Crown land for which the Minister of Conservation is responsible, and the purpose of the requested access is to allow “significant” mining activities.

If the activities are “significant”, the application must then be publicly notified, following the process set out in section 49 of the Conservation Act. This may happen together with the public notification of any related concession under the Conservation Act.

There is no clear test of what constitutes “significance”. It is left totally up to the joint Ministers’ discretion: the Ministers of Energy and Resources, and Conservation. The new section would provide:

“When determining whether proposed mining activities specified in the application are significant mining activities, the [Ministers] must have regard to –

(a) The effects the activities are likely to have on conservation values for the land; and
(b) The effects the activities are likely to have on other activities on the land; and
(c) The activities’ net impact on the land, either while the activities are taking place or after their completion; and
(d) Any other matters that the Ministers consider relevant.”

However any such provision was drafted, it would have to be tested for a time, to allow the courts to settle its boundaries. But this draft provision in the Bill makes no attempt to set a threshold. The Ministers simply decide, having regard to the specified factors.

We think that this is not appropriate.

Announcing their July 2010 decisions, Mrs Wilkinson and Mr Brownlee said:
“The proposal will ensure that mining-related applications are treated in the same way as other applications for access to conservation land...”

This stated intention has not been given effect. All other applications for conservation concession, whatever their scale, are notified.

Currently, according to our advice, it is open to the Minister of Conservation to publicly notify any access application. There is nothing in the Act that prevents it, and provision for the Minister to have regard to any matter she considers relevant.

The new requirement to notify significant cases, without reference to the remainder, weakens this.

As a minimum:
•    new section 61C needs a new para that says nothing in subs (3) shall be taken to limit the Minister’s residual discretion to publicly notify any other access application; and
•    subs (3) should be strengthened to give decision-makers and the courts guidance on what “significance” means.

Land to be automatically added to Schedule 4 once given that classification

Because of the changes made by clause 52 (which replaces Schedule 4, without removing any land from it) and consequential amendments to other Acts (Conservation, Reserves, Wildlife),  Schedule 4 will in future automatically apply to any land that, after this Bill comes into force, becomes land of a category described in clauses 1 to 8 of the Schedule, without the need for an Order in Council.

We support this. Schedule 4 has had a tendency to become quite out of date.

No removals by Order in Council from Schedule 4

New clause 31(9), amending section 61 of the Crown Minerals Act, provides that: “No Order in Council may be made under subsection (4) that results in land described in clauses 1 to 8 of Schedule 4 of this Act being excluded from that Schedule.”

This means that removals cannot be a Cabinet decision, but must be a matter for Parliament. We support this.

However, there is provision elsewhere in the Bill - clause 57, new section 18AA(5) - for wilderness area and sanctuary area status to be revoked by Order in Council, “and the land is to be held accordingly as provided in the order”. This is a concern, as it seems that those areas’ Schedule 4 status would then also be indirectly altered, if this were to occur. We are not sure how the two provisions fit together, and suggest that this must be an error.

Transitional provision: pending access applications

There’s a clause which applies the amendments in this Bill to “pending applications for access arrangements under section 61 of the principal Act” - that is, every application for an access arrangement for which a final decision has not been made before commencement of this section: clause 51, new section 115G.

If access decision-making in relation to the Denniston Plateau had not been completed before this Bill was passed, the Bill’s passage would shift the goal-posts on that decision significantly, by requiring economic benefit to be taken into account: compare, for example, the Commissioners’ decision currently being appealed by Forest & Bird and others under the RMA.

New purpose clause

The Crown Minerals Act’s long title is to be repealed. Currently, it is: “An Act to restate and reform the law relating to the management of Crown owned minerals”. This is the same as a purpose clause.

Instead, clause 6 the Bill would insert a new purpose clause, which provides:

“1A Purpose
The purpose of this Act is to promote prospecting for, exploration for, and mining of Crown owned minerals for the benefit of New Zealand, by providing for –
(a) The efficient allocation of rights to prospect for, explore for, and mine Crown owned minerals; and
(b) the effective management and regulation of the exercise of those rights; and
(c) a fair financial return to the Crown for its minerals.”

Whereas the current long title is neutral, the new purpose is not: it is to “promote prospecting for, exploration for, and mining of Crown owned minerals for the benefit of New Zealand”.

This can be expected to colour the interpretation of the whole of the rest of the Act, and potentially, override and change existing case law.

The long title should be kept, and the new purpose clause omitted.

Submission guidance

If you do make a submission, you’ll be asked if you want to appear in person to speak to it. This can be good opportunity to explore your argument further in person with committee members, in front of officials, and answer the MPs’ questions, but it isn’t necessary: all written submissions will be considered, so it is worthwhile making a submission, even if you don’t want to appear before the committee. 

Contact: Conservation Advocate, Claire Browning - c.browning@forestandbird.org.nz