Forest and Bird lodges High Court appeal on Cypress mine decision

23 June 2005 - Christchurch

Contact: Eugenie Sage 03 366 6317

The Royal Forest and Bird Protection Society has appealed to the High Court the Environment Court's decision to grant consent to Solid Energy's proposed Cypress open cast coal mine.

Appeals to the High Court are on points of law. The questions of law to be resolved are:

1. Whether there was sufficient evidence to support the Environment Court's finding that it was possible for Solid Energy to transfer successfully 12 ha of red tussock wetland communities to an intermediate site and back to the mine site.

2. Whether the Environment Court applied the wrong legal test in assessing the mitigation for known effects on matters of national importance including significant habitat of indigenous fauna, and the natural character of wetlands. The Court assessed this in terms of the balance of probabilities. The appeal claims that a higher standard of proof is appropriate where there are permanent effects on what the Resource Management Act (RMA) identifies as matters of national importance

3. Whether the Environment Court applied the correct legal test in concluding that effects on matters of national importance (e.g. loss of significant habitat of indigenous fauna) under the RMA could be compensated for (by a predator control programme) rather than avoided, remedied or mitigated.

4. Whether the Court took into account an irrelevant matter in considering the economic benefits of the mine to taxpayers because Solid Energy is a State Owned Enterprise (SOE). This could result in SOE's having an advantage over private companies in the consent process in circumstances where such status is irrelevant to the issue of sustainability of the resources involved.