Tension over mine access

The Southland District Council (SDC) was wearing its "land-owner hat" not its regulatory one when it granted a company access for coal exploration and mining last year, a court has heard.

A civil judicial hearing before Justice Rob Osborne ended in the High Court at Invercargill yesterday after the judge heard submissions from Forest & Bird, who filed the claim, and defendants SDC and mining company New Brighton Collieries Ltd.

Forest & Bird is seeking a judicial review of SDC’s decision to grant New Brighton Collieries, a subsidiary of Bathurst Resources Ltd, access for coal exploration and, subject to negotiation, an agreement for access for coal mining. It said that the granting of both showed errors of law and unreasonableness.

Yesterday New Brighton Collieries lawyer Richard Gordon said the council had two hats and was wearing its land-owner one when it made the commercial decision to grant access to the mine.

"The need for the access arrangement arose simply because they (SDC) owned the land."

Mr Gordon said council granted access knowing full well it may have to put its regulatory hat on in the future if a resource consent was sought by New Brighton Collieries.

There was still assessment to be done on the coal found, resource consenting costs, how long it was going to take and if there was a market still to sell the coal before New Brighton Collieries made its decision on whether to mine or not.

If the mining company was to proceed, it would need to get a permit, finalise an access agreement and also obtain a resource consent.

"It’s a bit like the opposite of a Meat Loaf song ... that two out of three ain’t bad.

"But here, sir, it’s the opposite, two out of three gets you nowhere."

Mr Gordon said if both council and New Brighton Colleries decided to proceed, the resource consent would be publicly notified which would then give people the opportunity to have their say.

A letter had been sent from council to Forest & Bird in December 2021, asking it to discontinue proceedings and saying that the council would not execute the access agreement until such time as resource consents for mining were obtained.

The request was rejected by Forest & Bird, Mr Gordon said.

In response to SDC and New Brighton Collieries submissions, Forest & Bird lawyer Adam McDonald said that it was right councillors should use knowledge of its community to make decisions, however there was no compelling evidence to show councillors indeed knew what their views were.

He did not agree with Mr Gordon’s comment that Forest & Bird should have waited until the resource consent process was under way to undertake proceedings.

"What Forest & Bird has done, sir, is responsibly bring its application after the decision-making body has made its decision."

Forest & Bird would have been criticised for sitting on its hands, had it waited until the resource consenting stage to have its say, he said.

Justice Osborne reserved his decision.

karen.pasco@odt.co.nz

 

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