Coal mine on West Coast public reserve argued in court
Tuesday, 17 October 2017
An application to build an open-cast coal mine on a public reserve risks setting a national precedent, Forest & Bird says.
The conservation group has challenged an application by Rangitira Developments to mine a public reserve on Mt Te Kuha, near Westport on the South Island's West Coast.
The mine would scar the ridge line of the mountain as viewed from Westport and cause significant damage to about 70 hectares of the reserve.
Species known to exist in the mine's total 884ha permit area include great spotted kiwi, New Zealand falcon, native skinks, moss, and tussocks.
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The company has acknowledged that species such as kiwi will need to be relocated for the mine.
Part of the mine will also be in a Department of Conservation (DOC) stewardship area, an application that will be considered by DOC.
The reserve is set aside for water conservation, but is not used as a water supply.
Both sides agreed the reserve had significant ecological and landscape values. There would be irreversible damage within the mine's footprint, and rehabilitation would take decades.
The Buller District Council granted use of the reserve last year, but back-tracked after Forest & Bird's legal challenge. The case was heard in the High Court on Tuesday.
The central question concerns what law takes precedence: the Reserves Act, which requires the council to protect and maintain the reserve's resources, or the Crown Minerals Act (CMA), which gives the council discretion to approve access to the land for any reason, including coal mining.
Forest & Bird argued that allowing the CMA to prevail could 'significantly undermine' legal obligations under other acts, counsel Peter Anderson said.
It would risk setting a precedent where council reserve land around the country could be offered up for mining.
Rangitira said the CMA allowed the council to consider the environmental impact, but it could approve use of the land 'without constraints'.
Under the Reserves Act, the resources in the reserve would need to be maintained if a coal mine went ahead.
The mine company argued it could do that by doing pest control and other ecological work in the wider area, creating a net gain despite damaging the area within the mine's footprint.
It was similar to the Government's argument in the recent Supreme Court case regarding the Ruataniwha Dam in Hawke's Bay. It had sought to revoke conservation status for a piece of land and grant it to another, effectively a land swap.
Forest & Bird challenged that decision and won.
Anderson said that decision was 'directly applicable' to the Te Kuha case, and it ruled conclusively that 'protecting' an area could not involve destroying part of it.
'It strains the meaning of 'protect' to allow it to permit an open-cast coal mine to proceed because some enhancement measures are taken elsewhere, within the reserve and outside of it,' he told the court.
'It could not be clearer that enhancement measures outside the reserve do not protect the natural resources of the reserve.'
The mine would create 64 jobs and remain for 16 years. It would produce metallurgic coal, primarily used for steel making.
A decision is expected within the coming months.