Santana's planned Central Otago gold mine could be declined approval if it fails to meet Treaty of Waitangi obligations, a lawyer for Ngāi Tahu warns.
Australian mining firm Santana has applied for permission using fast-track legislation.
In a meeting with fast-track panel convener Judge Jane Borthwick late last month, Ngāi Tahu’s legal council, Nicole Buxeda, flagged that section seven of the Fast-Track Approvals Act requires applicants to act in a manner consistent with Treaty obligations and customary rights.
There may be "inconsistencies arising" with regard to meeting Treaty obligations, she said.
Under a separate section of the Act, the application must be declined if the panel considers granting approval breaches the requirements in section seven.
There had not been the "time nor resource opportunity to formulate a fulsome view" on the issue, Ms Buxeda said, but Ngāi Tahu wanted to "indicate there are concerns".
An accompanying Ngāi Tahu memorandum also said there could be "potential breaches of Treaty settlements".
"This is a complex issue, made more difficult by absence of any meaningful dialogue with the applicant on this point."
In the meeting, Ms Buxeda recommended there should be a hearing to consider legal submissions on the matter.
She indicated, both in the meeting, in the memorandum and in a letter to the Environmental Protection Agency last November, that Kā Rūnaka had not been given a fair opportunity to evaluate and comment on the proposed mine’s technical or cultural impacts prior to Santana submitting its application.
Serious concerns about the project, held by Kā Rūnaka, had not been addressed through consultation nor included in Santana’s application.
Ms Buxeda said, in the meeting, consultation had been a "matter to be undertaken prior to lodgement".
"What occurs now is engagement, but the door for consultation is shut now."
In its letter to the EPA, Kā Rūnaka also said it had "no confidence" Santana had taken any of its feedback into consideration.
Ngāi Tahu’s counsel also raised in the meeting the application to mine would require revocation of part of a conservation covenant.
This was a "novel" aspect of the application and there were unknowns about the impact on any taonga species.
"The potential for inconsistency with section seven arises again ..." the counsel said.
Judge Borthwick said, in the meeting last week, Santana’s application had failed to provide her with "a sense of what Maori views were" as these views seemed not to be recorded in it.
She asked Ngāi Tahu when they thought the matter of compliance with Treaty obligations should be considered in the fast-track process, adding the Act was a "complicated" piece of law that could involve an application being declined, amended and reconsidered.
Ngāi Tahu counsel said it was a "very good question", but the "Treaty was the first step of importance here".
Whether the matter was dealt with first, or concurrent with other matters, was a question for the panel to consider.
While there were practicalities to think about, the Treaty was extremely important and there was a "hierarchy at stake".
Judge Borthwick said the panel would need to turn its mind to the issue.
"This is significant. It goes to public law and I need to think how to factor this into this process."
When quizzed by Judge Borthwick about whether any potential breach of Treaty or customary rights could be remedied by Santana — either by it amending its application or providing information to Ngāi Tahu now — Ms Buxeda said she could not say at this stage.
Santana’s legal counsel, Joshua Leckie, told the judge the company felt that since 2017 it had made extensive efforts to engage with the iwi and there was "a commitment and a desire to continue in those efforts".
Technical reports had subsequently been sent to Ngāi Tahu, he said.
Judge Borthwick told him it was not her role to resolve what "appeared to have been a breakdown in the relationship" with Ngāi Tahu, but the iwi sought a change in the manner of engagement from Santana, which she felt was achievable.
Santana’s communications and government adviser Polly Clague said the firm had "engaged in good faith and at scale" with Ngāi Tahu and the fast track panel "has the evidence it requires to assess compliance with the Act".
Ms Clague said her firm was "not going to litigate relationship dynamics, correspondence sequences, or selective timelines through the ODT" and was committed to "ongoing engagement with Ngāi Tahu".
Judge Borthwick has since determined the panel considering consent for the mine will convene on February 25 and require 140 working days to work through the large amount of complex information about the project, some of which would "likely raise novel legal issues".
A decision would not be reached until the end of October this year.
