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While there is strong concern over opening Schedule 4 land to mining, there is little public awareness of the current protections against adverse and potentially negative impacts of such activities, writes Bryan Gundersen and Laurice Avery.
Since coming to power in 2009, the National-led government has expressed its intention to mobilise the mineral industry and increase the opportunity for mining activities in order to bolster our weak economy. Subsequently, in March this year, a discussion document was released and public feedback sought on the government’s proposal for maximising New Zealand’s mineral potential. Among other recommendations, the document proposes to take land in Coromandel, Great Barrier Island, and parts of Paparoa National Park out of the protection of schedule 4 in the Crown Minerals Act 1991 (‘CMA’), and allow applications for mineral related activity to be considered in relation to those areas. Generally, there has been public concern over the potential environmental impact on what is viewed as some of the country’s most precious land, as well as the possible damage to our 100 percent pure image. However, before mining activities can take place on any land, a number of protections mean that the environment, cultural issues and public views are taken into account. One means of protection is through the requirement of an access arrangement. Access arrangements provide a vehicle for negating the potential negative impacts that mining activities may have. The granting of a permit under the CMA does not give the permit holder an automatic right of access to any land. The CMA requires the consent of the land owner and/or occupier to be obtained before any work other than “minimum impact activities” is undertaken. Therefore, before commencing prospecting, exploration, or mining activities, a permit holder must reach an appropriate land access arrangement with the land owner and/or the land occupier. The CMA defines an ‘access arrangement’ as: …an arrangement between persons desiring access to land for the purpose of carrying out mineral-related activities and the owner and occupier of the land, permitting such access… Sections 49 to 80 of the CMA set out the rules relating to land access. Different rules apply depending on the type of land involved and what the type of activities will be carried out. Where permit activities will affect Crown land, section 61 of the CMA provides that the appropriate Minister may enter into an access arrangement in respect of the relevant land. When considering whether to agree to an access arrangement, the minister must consider the following factors:
These factors ensure that a responsible approach is taken. An access agreement provides the opportunity to impose additional controls on prospecting, exploring or mining activities by limiting the methods employed and imposing conditions ensuring protection against any potential adverse impacts. An even more robust approach is taken when the land in question is conservation estate administered by the Department of Conservation (‘DOC’). In relation to any land administered by DOC, permission to enter land and carry out a programme of investigative fieldwork, including ‘minimum impact activities’, must first be granted by the Minister of Conservation. Although most details required by DOC are based on the general legislative requirements provided under the CMA, there are also specific considerations that DOC expects from applications. Each application must include a description of the types of work proposed (as listed in a work programme attached to the permit), a description of how the activity will be undertaken (including the size of samples, density of sampling and equipment used to collect samples), a description of the proposed means of access, details of any camps proposed, and a description of the likely environmental effects and how any such negative effects will be minimised. In considering whether or not to grant access, DOC’s main concerns, in accordance with the requirements of section 61 of the CMA, are that:
DOC is also required to take into account any views that Tangata Whenua may have about the application. DOC will only grant an access arrangement if it is satisfied that the matters listed above are dealt with sufficiently, and that any negative impacts will be mitigated. Furthermore, if DOC does have any concerns, these can be addressed through the imposition of conditions and limitations in the access agreement. It should be noted that, as proposed in the discussion document, in relation to current Schedule 4 land, joint approval of the land-holding Minister (that is, the Minister of Conservation) and the Minister of Energy and Resources will be required. This collaborative approach to access agreements may arguably provide even greater protection of conservation estate. Increased activity in the minerals sector will arguably enable New Zealand to bolster its weak economy and close the ever growing gap with Australian living standards. While there is strong public concern as to the opening up of Schedule 4 land to mining related activities, there is little public awareness of the current protections against adverse and potentially negative impacts of such activities. The protections contained within the minerals permit scheme itself, the protections within the RMA, and the limitations imposed in access agreements will enable protection of the conservation estate should the Government’s proposal be adopted.
Energy NZ Vol.4 No.3 May-June 2010 |
New Zealand is a mineral rich country. The current value of the mining industry (excluding petroleum) is $1.505 billion. An estimate of the value of on-shore minerals (excluding coal and other hydrocarbon-based minerals) is about $194 billion.