The possible legal action is raised in a letter, obtained by the Otago Daily Times, from Environmental Defence Society (EDS) chief executive Gary Taylor to Central Otago District Council (CODC) chief executive Peter Kelly, with Santana chief executive Damian Spring copied in.
The letter said Mr Kelly should "urgently retract" a three-paragraph "Consent Declaration" between the council and Santana — dated October 16 last year — or face the possible legal action.
The declaration came to light after it was posted on the Environmental Protection Authority (EPA) fast-track website as part of Santana’s application for go-ahead.
The EPA deemed Santana’s application complete — meaning ready for consideration by a fast-track panel — on November 21.
The declaration said the council gave "landowner approval" for Santana’s proposed goldmining activities on land occupied by council-owned roads.
The council gave its "consent to the [fast-track] application being lodged on that basis", the declaration said.
The council owns two public roads in the proposed mine site on the flanks of the Dunstan Mountains: Shepherds Creek Rd — a paper road that archaeologists say has heritage value — and the gravel Thomson Gorge Rd, connecting to Ophir.
The declaration was of "serious concern", Mr Taylor’s letter said.
"CODC’s putative decision to give ‘approval’ on a secret basis, without prior consultation or public discussion, may be illegal," he wrote.
It had also "substantially advantaged" Santana.
If the council refused to retract the declaration, Mr Kelly should forward to the defence society documentation relating to the declaration, such as meeting minutes, to inform "potential legal proceedings in the High Court regarding the legality of the CODC approval", Mr Taylor said.
A few weeks before the declaration, the ODT revealed the council had been in closed-door discussions with Santana about using the roads’ land.
The ODT had also revealed its reporter had faced a locked gate and Santana signs when trying to walk in Shepherds Creek Rd. The council had said it was working to resolve blocked access.
Mr Taylor’s letter said stoppage of public roads required approval under the Crown Minerals Act and the Local Government Act and must be publicly notified.
Such a process would likely "attract significant public interest".
It is presumed Mr Kelly signed the declaration on behalf of the district council, but it is not known.
The signature on the agreement is redacted.
Mr Taylor advised in his letter that Mr Kelly should retract the declaration by way of a notice to the EPA’s fast-track panel convener Jane Borthwick.
Judge Borthwick is currently considering details of the hearing, including its length and who will be on the panel.
The CODC had nominated Otago regional councillor Neil Gillespie, but is discussing in a meeting tomorrow whether a different nominee is needed, noting the "particular technical nature" of the application.
In his letter to the council, Mr Taylor also referenced his expectation that EDS would be invited by the fast-track panel to participate in the decision-making — and pulled no punches about his thoughts on it.
"The scale of the project is unprecedented in New Zealand and, if approved, will result in permanent consequences for landscape, natural character, freshwater, indigenous biodiversity and the wellbeing of the Central Otago community."
A spokesperson for community group Sustainable Tarras, which objects to the mine on environmental and economic grounds, said the group had "for some time expressed ongoing concern about the legalities of an access arrangement" for CODC-owned roads.
The requested revocation of part of the conservation covenant was another concern.
"Santana’s approach appears to be to bulldoze their way through these concerns ... with little or no consultation with virtually all parties," the group said.
Mr Kelly was asked to comment on EDS’ letter but did not.
A CODC spokesperson said a response to the letter was being considered and Sustainable Tarras’ concerns were acknowledged.
A further council meeting was happening today — also behind closed doors — and was a "continuation of the negotiations for an access agreement" with Santana.
Mr Spring said "nothing raised by EDS alters the statutory pathway the project is already on".
