The Southland District Council’s (SDC) decision to allow New Brighton Collieries a permit to explore and mine coal on council-owned land at Ohai was fundamentally flawed, Forest and Bird says.
A civil judicial hearing began before Justice Rob Osborne in the High Court at Invercargill yesterday.
Forest and Bird is seeking a review of SDC’s decision to grant New Brighton Collieries Ltd, a subsidiary of Bathurst Resources Ltd, access for coal exploration and, subject to negotiation, an agreement for access for coal mining, saying its granting of both showed errors of law and unreasonableness.
During the hearing yesterday, Forest and Bird lawyer Adam McDonald said the Local Government Act was not followed, particularly in ensuring the societal, economic, cultural and environmental wellbeing of the district was considered in its decision-making process, all of which he believed to be mandatory.
The council made its decision to allow New Brighton Collieries access on April 14, 2021 at a council meeting where the public was excluded.
"In fact all of the materials in this case, sir, were withheld from the public and in my submission sir, that’s a far cry from the open and transparent decision-making that’s envisaged by the Act and which ought to allow accountability."
Mr McDonald said the council’s granting of exploration and access was flawed as it did not carry out public consultation, did not take into account scientific considerations around climate change and failed to adopt its own policies and procedures when making its decision.
He said the exploration review might be moot as this was already completed.
Southland District Council lawyer Matt Conway said Bathurst Resources Ltd first made contact with the council regarding access to the mine in December 2020.
In January 22, 2021, council let Bathurst know it would require a section 59 notice as per the Crown Minerals Act requirements and three days later Bathurst emailed back the notice. Council then took steps to gain more information, including seeking information from external consultants including seeking direction on when the best time to hold public consultation would be.
Considerable time was spent discussing the matter during public excluded meetings, he said.
"The elected members seriously grappled with the matters that were presented to them in reports."
That was why a clause was entered into council’s recommendation before it was adopted that New Brighton Collieries be subject to a publicly notified resource consent application if it was to pursue the matter further.
In his submissions, New Brighton Collieries lawyer Richard Gordon said Forest and Bird had "jumped the gun" in bringing the matter to court.
While Forest and Bird kept talking about coal mining, the review was actually about access to land.
No mining had actually occurred and it might never occur, he said.
"That just still remains to be seen."
He said regulatory approvals would have to be sought and gained before mining could start.
He believed the appropriate time for public submissions regarding mining was at the time New Brighton Collieries applied for a resource consent.
If the mining were to go ahead, he said it would extend the life of mining in the area from two to four years.
He said there was ongoing demand for users of coal during the transition as the country changed to alternative energy sources as the country strived to be carbon neutral by 2050.
The hearing continues today.
