The fast-track panel considering the mine is scheduled to open its hearings tomorrow at Ōtākou Marae. The panel will hear from Kā Rūnaka, the four Ngāi Tahu rūnanga which have jointly objected to the mine on Treaty grounds, including a failure by Santana to consult iwi appropriately before applying, along with environmental and cultural concerns.
Submissions from Santana have now claimed the firm did consult, the mine plan could not be stopped by the Ngāi Tahu Claims Settlement Act 1998 and Ngāi Tahu had sought $180m if the plan went ahead — an allegation Ngāi Tahu denies.
Speaking to the Otago Daily Times, former attorney-general and minister for Treaty of Waitangi negotiations Christopher Finlayson KC — who between 2008 and 2017 signed 59 deeds of settlement — said there was ‘‘well established authority’’ that any consultation must be done thoroughly.
‘‘You have to give people time to absorb the information, provide the information and be open to changing your mind, depending on the consultation process.’’
An entity required to consult with iwi had an obligation to consult in that way, he said.
‘‘It may take time, and it may be aggravating, but that is what the consultation process is about ...’’
A significant part of the land Santana proposes to mine is protected by a government conservation covenant. Multiple submitters to the fast-track panel have flagged risks of polluted water, loss of biodiversity and destruction of cultural and historic landscapes.
Mr Finlayson said that under article 2 of the Treaty, and in Treaty settlement, Ngāi Tahu had rangatiratanga — chiefly authority — in its area and rights and stewardship obligations to protect water and the land.
‘‘When Ngāi Tahu settled with the Crown, a key thing was conservation ... right the way through the settlement it talks about the importance of conservation land.
‘‘When I signed Treaty settlements I emphasised, on behalf of the Crown, that this is what happened, we acknowledge it was wrong, we solemnly undertake that henceforth the relationship we have will be based on the Treaty of Waitangi — and we won’t do this sort of thing again.’’
Mr Finlayson was King’s Counsel for Ngāi Tahu in a High Court case last year, challenging the Crown over freshwater management. The case has yet to be ruled upon.
University of Otago law professor and Treaty specialist Nicola Wheen also stressed the importance of consultation.
‘‘The purpose of consultation was to enable people to contribute meaningfully in the process, so it had to be preceding and throughout,’’ she said.
A key legal issue was the interpretation of a section of the Fast-Track Approvals Act about the Treaty, Prof Wheen said.
Section 7 of the Act stipulates that ‘‘all persons performing and exercising functions, powers and duties under the Act must act in a manner that is consistent with the obligations arising under existing Treaty settlements’’.
Only the court system could determine what this meant, she said.
It was ‘‘always anticipated that the fast-track legislation was going to generate litigation and section 7 was a sitter for litigation’’.
The crux of the issue was not about the relationship between any commercial firm and iwi, she said. It was about whether a particular proposal could be considered under the fast-track process due to the Crown’s Treaty obligations.
The meaning, and possible breach, of section 7 could mean it was ‘‘prudent’’ to deal with the issue through the courts before decision-making about the Bendigo project, she said.
Panel convener Jane Borthwick had also indicated, in a pre-panel meeting attended by Ngāi Tahu and Santana in February, that any section 7 breach was a priority consideration.
‘‘It goes to public law and I need to think how to factor this into the process,’’ she said.
A panel’s decision to grant or decline an approval may be appealed to the High Court. Appeals can be against the whole or a part of the decision, but only on a question of law and only by those invited to be involved in the process, which, in the case of Bendigo, includes Kā Rūnaka.
Santana was asked to comment specifically on the issues of consultation before application and section 7 requirements.
Santana chief executive Damian Spring said that, in his view, the application to mine was being progressed in line with fast-track requirements and his firm had ‘‘engaged constructively and in good faith with iwi and stakeholders over several years, and that engagement continues’’.
