Mining Watchdog TCDC and Environment Court

Background from a report by Denis Tegg, Watchdog lawyer

 In 1998 TCDC reviewed its District Plan under the Resource Management Act.   After a series of workshops and hearings the Council decided to make all forms of mining a prohibited activity in both the coastal and conservation zones.   The effect of a prohibited activity is that it prevents an application for a resource consent being made.

The Minerals Industry Association and the Ministry of Economic Development both filed references (appeals) to the Environment Court seeking to have all forms of mining as a discretionary activity in both the conservation and coastal zones.   Watchdog, Thames Environment Society and Tairua Environment Society all supported the Council's decisions and therefore did not appeal.   However all three groups filed a notice stating they were "interested parties" which allowed them to participate in the appeal process as full participants.

The Minerals Association did not actively pursue their appeal, and it was only in January 2004 that the Court required the case to be set down for hearing in May 2004.   Watchdog   repeatedly asked to be involved in any pre-hearing discussions or negotiations, but this never happened.   Then without any warning Council advised in early April 2004, that they had changed their position from 1998, and would allow underground mining (as opposed to surface mining) as a discretionary activity in both the coastal and conservation zones.   -- (see more on their decision-making process below).   The council's new position would however still make surface mining and mining operations ( ie everything other than digging the hole) a prohibited activity in the coastal and conservation zones.

Suddenly Watchdog's position changed from being involved just to support the Council, to having to actively oppose the council -- at least as regards the new stance on underground mining.

The three environment groups had sufficient funds to instruct myself as Solicitor and to engage Graeme Lawrence as our expert planning witness and Ian Cowper as our barrister.   Ian is a very senior environmental lawyer with substantial experience in the Environment Court , and we were very lucky to get him at such short notice.   Sally Christie also gave evidence as former chairperson of the committee which heard submissions on the District Plan.  

The TCDC's decision-making process

The decision to change the council's position was made by the Planning and Policy committee.   The chairperson is Brian Sharp the other members are Philippa Bariball, Yvonne Walmsley, and Noel Hewitt.   The committee has delegated authority and made the decision without reference to, or consultation with any other councillors.   Alan Matheson, a Hamilton Planner ,   wrote a 30 page report justifying the new position, and this report was tabled at the committee hearing with none of the committee members having an opportunity to read it beforehand.   The committee did not seek to involve the rest of the Council, let alone anyone who had made the submissions on the Plan, or the general public.   (Several councillors were not aware of the new stance until the committee reported back.)    The committee decided on the spot to change its position.   Thus, ten years of public participation and concern about underground mining was undone in one meeting, after hearing a report from a planner, who had no previous experience with the TCDC District Plan or public attitudes to mining, and who only became involved in April 2004.

  The Hearing

The case was heard over three days in late May, before Judge Thompson and 2 commissioners .

The Council began with their main witness being Alan Matheson, the planning consultant engaged only in early April. Under cross-examination from our barrister Ian Cowper, Matheson agreed that his proposed stance on underground mining was ill-conceived and lacked integrity.   For example he would allow underground mining (the digging out of the rock etc) as a discretionary activity, but mining operations (everything else) would be prohibited.   However most underground mines involve placing the waste rock back into the mine tunnels which would be a prohibited activity !

Matheson came across as someone who had come into the matter far too late, and had not carefully thought through his proposed new position on underground mining.

The council's lawyers did however make excellent legal submissions on why surface mining and mining operations should be prohibited in the coastal and conservation zones.   It was just a pity that they may muddied the waters with the new stance on underground mining.

Our Case

Our case, as presented through the evidence of Graeme Lawrence, was simple and consistent.   We argued in support of Council's original position that neither underground nor surface mining should be permitted by way of a resource consent.   Instead a mining company would have to apply for a change to the Plan -- but only if and when they had identified a mineral resource which they believed should be mined.   In other words the prohibited activity status would rule out ad hoc resource consents, and force the mining company to convince the council , and the community,   that a Plan Change was justified.   We pointed to the Auckland City Plan where mining is a prohibited activity on Great Barrier Island .   We argued that no distinction should be made between underground and surface mining and referred to the reasons why the Monowai mine at Waiomu was declined consent by the Minister of Conservation.   We pointed to the matters of national importance in the RMA to preserve and protect the coast, landscape and natural flora and fauna of the conservation land, and the supporting policies and objectives of the two zones.

Graeme was cross-examined for nearly 3 hours, but nobody could shake him from our position.   I believe his evidence was pivotal.

Sally Christie's evidence was accepted as presented and she was not cross-examined.

Minerals Association and Ministry case.

The mining interests called six witnesses --

• Doug Gordon the lobbyist for the association.   He was aggressive and extravagant in some of his claims.   Lacked credibility
• Brent Wheeler an economist gave evidence about the perceived economic contribution of Martha Hill etc to the local and regional economy.   However he agreed under cross-examination that he had not done any study of the economic benefit of the value of the coast and conservation land to the economy -- hence his evidence was unbalanced, and pretty much irrelevant anyway.
• Dave Ingle, mine manager Waihi banged on about what a wonderful job was being done at Waihi but failed to even mention Waitekauri in his evidence.   As Martha is not in the coastal or conservation zones   - again, his evidence was largely irrelevant.
• Richard Barker geologist could not say under cross-examination just where the next mine in Thames Coromandel might be -- which supported our Case that if and when they mineral resource had been proven, -- the appropriate process was then to apply for a Plan Change
• David Willetts a planner was not a convincing witness
• Dave Sergeant was their key witness.   Very experienced acting for major developers.   He was "softened up" by cross-examination from council's lawyers and Ian Cowper was able to get him to make a major concessions in his evidence that for most mining proposals a plan change, rather than a resource consent -- was the sensible way to go.   Which of course supported our Case.   These were very surprisingly and significant concessions, and came in the last half-hour of the hearing !   As the case was all about the appropriate planning mechanism to use we made big inroads here.

Overall I believe we presented the most credible and consistent case, and our evidence stood firm even after cross-examination.   Ian Cowper did an excellent job.   I believe that given our resources, we did all we could, and that the money provided by the groups was very well spent.   The decision of the Court has been reserved and it may be many weeks or even months before a decision comes through.   Ian Cowper thinks that we did enough to win.   However the judge is very inscrutable and it is pretty much impossible to tell what he is thinking.   He asks very few questions.

Other Matters to Come Out of the Hearing

1.          No prospecting or exploration permits have been applied for/granted anywhere -- not just conservation land -- north of the Kopu Hikuai Road .   I may be paranoid, but I believe this may be part of an industry campaign to first try to get the District Plan changed, and then push for a change to the legislation to remove the ban on conservation land north of the Kopu Hikuai Road .   If they succeed at the hearing they will no doubt argue that the Environment Court has supported resource consent applications on conservation land and it should be left to the RMA, and then point to the map showing that the legislative ban has "discouraged" any exploration ,   and that the ban should be removed.   Also a National government could make it even more likely that the strategy is successful.

2.          Their geologist confirmed that it was an opencast mine which was planned in the hills behind Thames .

3.          Apparently Waikato Regional Council are close to allowing the owners of Golden Cross to pick up their rehabilitation bond.!

Notice-board

Headlines

The difference between Quarrying & Mining

current mining  background

Environment Court decision pdf(526kb)

Mark & Nedilka roast Coffee as well as Miners -- from the Thames Organic Co-op shop or below