Conservation group takes on council, mining company in High Court over ‘licence to occupy’
Tuesday, 14 November 2023
An anti-mining group is taking on a district council and a mining company in court, over decisions that could lead to a major new underground gold mine in the Coromandel Peninsula.
The group, Ours Not Mines, has launched a challenge in the High Court in Hamilton against a decision made by the Hauraki District Council that could, potentially, substantially assist mining firm OceanaGold’s plans to dig a 6.8 kilometre-deep tunnel under public conservation land at Wharekirauponga, north of Waihī.
The location, in the midst of dense native bush, is also the habitat of the critically endangered Archey’s Frog.
It has been estimated about $1.8 billion worth of gold could be recovered if the mining company is eventually given the green light.
In 2021 the council granted the company the right to occupy a road reserve on Willows Rd, a paper road, for just $1 per year, to allow for the construction of infrastructure.
Ours Not Mines, through lawyers Tim Mullins and Adam McDonald, have argued the council did not actually have the power to grant that licence, and wants the move reviewed.
But the council - accompanied in court by OceanaGold as second respondent - countered that there is nothing illegal or untoward in the licence to occupy.
Much of the mining activity would not be at surface level, and ventilation shaft openings, a helicopter pad, and accommodation barracks for the miners would be all that could be visible from overhead.
The case, which is being heard by Justice Layne Harvey, is potentially precedent-setting.
At heart is the question over whether the public retains common-law right to have access to a road, even if it is only a paper road that exists just as a legal pathway for a potential future thoroughfare.
The road is effectively owned by the council, and it is surrounded by Department of Conservation-owned land.
That right to “pass and repass” over every part of a road, whether it was an actual road or just a paper road in a location such as Wharekirauponga, was enshrined in law.
Fencing off part of that road around the mine vents therefore constituted a public nuisance.
Mullins said the licence reflected “the idea that the council owns the land … and it can do what it wants with it”.
The group also contends what the council granted is effectively a lease - permission to rent parts of the road for 40 years - rather than a simple licence to occupy, and it is therefore unlawful.
The group also questioned the lack of iwi consultation prior to the licence granting - which was apparently not required because it was dealt with as an administrative process, rather than a public one.
The district council, represented in court by lawyer David Neutze, argued the licence to occupy did not amount to tacit approval for an underground mine in that location.
A suite of resource consents would be required from both the district council and the Waikato Regional Council before mining activities were authorised.
Willows Rd was hard to get to, he said.
“You need fairly good GPS to find it. The only previous users would be enthusiastic hikers, or maybe a hunter.
“It’s a truly unformed road … It’s dense bush.”
The council’s decision to grant the licence to occupy - approved by a 10 to two vote in favour - was completely legal, Neutze said.
OceanaGold also has a presence in the courtroom, in the form of lawyers Sally McKechnie and Brooke Clifford.
The hearing will continue on Tuesday.