Crown Minerals (Permitting and Crown Land) Bill - NZCA submission
IntroductionSubmitted 2 November 2012: Read the NZCA's submission on the Crown Minerals (Permitting and Crown Land) Bill.
Submission date: 2 November 2012
Submitted to: Commerce Committee
Identification of submitter
This submission is by the New Zealand Conservation Authority (NZCA), P O Box 10420, Wellington 6143. Tel: (04) 471 3211
The NZCA is a statutory body, established by section 6A of the Conservation Act 1987, having functions centred on policy and planning for land, waters and species managed by the Department of Conservation. It approves the policy statements called conservation management strategies to which Ministers will have regard under proposed amendments to section 61(2) of the Crown Minerals Act.
The 13 members of the NZCA comprise a diverse group, appointed by the Minister of Conservation on the nomination or recommendation of four specified bodies (4 members), in consultation with three specified Ministers of the Crown (5 members) and after the receipt of public nominations (4 members).
Intent of submission
Balancing the needs of mining development and conservation requires careful consideration if both near and long-term economic needs are to be met. The NZCA submits that the proposed legislation as currently worded will not enable this balance to be achieved and therefore suggests its current form be moderated as set out below.
The NZCA recommends that proposed section 1A be amended by
- replacing ‘promote’ with ‘enable’ in the first line,
- adding words at the end of (b) to indicate the outcome expected from “effective management and regulation”; and specifically to ensure that the full costs of the activity are met by the rights holder including adverse impacts on other users of the land and adjacent conservation land.
The NZCA recommends that adjacent conservation land be defined and suggests it read “a 1 km buffer, and if the mining is deemed to have an adverse visual impact on the natural values, the buffer be increased to avoid or markedly reduce the visual impact.”
The NZCA opposes the proposal for access arrangements to Crown minerals on public conservation land to be made jointly by the Minister of Conservation and the Minister responsible for the Crown Minerals Act. A decision having been made to set aside land for conservation purposes, that decision is negated by appointing, as a decision-maker, a minister with no accountability for public conservation land or wildlife and therefore the consequences (good and bad) of decisions affecting them.
The NZCA has noted the proposals in clause 32 for the insertion of a new section 61C but these proposals do not meet the NZCA’s concerns. See comments below for clause 32.
The NZCA recommends that decisions on access to Crown land for which the Minister of Conservation is the accountable Minister remain the responsibility of the Minister of Conservation alone.
The proposed subsection 61(2)(da) only allows for the perceived benefits of mining to be factored into a decision. As proposed, section 61C(5) restricts Ministers to having regard to only those matters specified in section 61(2). They can give no consideration to any adverse effects on the values of the land or adjacent conservation land from the activity, nor the beneficial effects of those values, nor the benefits of other uses of the land or adjacent conservation land (which may be other commercial uses), nor to any submissions received pursuant to proposed section 61C(3). See also comments under Clause 32 below.
The decision-making criteria are unbalanced and would facilitate a decision in favour of mining by the insertion of proposed new subsection 61(2)(da).
The NZCA recommends that a new section be inserted after section 61(2)(da) - (db) the economic and other benefits of not developing the land for the proposed activity in relation to which the access arrangement is sought.
The NZCA considers the criteria for determining significance for the purpose of notifying access arrangements to Crown land for which the Minister of Conservation is the accountable Minister is too narrow and means that mining is given an unfair and unreasonable advantage over other actual and potential commercial and non-commercial uses of land set aside for conservation purposes.
Section 61C(2)(a), (b) and (c) refers simply to “the land”. The scope of this reference is unknown. In a public conservation land context it might, for instance, mean the site of the proposed activity, a surveyed parcel of land or a land status parcel. For the efficient implementation of this provision, and to avoid public discontent, it is desirable that the meaning be clear.
The NZCA considers that significance should unequivocally encompass the effects the activities might have on the values and activities on conservation land adjacent to the site upon which the activity is intended. Example: the proposed activity could be adjacent to a nature reserve or national park, or located close to a popular back country tramping track or area used by a licensed tourism operator. Adverse effects from mining could be significant.
The NZCA further considers that the purpose for which the land is held by the Crown and any policy statement, strategy or management plan applying to that land is also a relevant consideration when determining significance. Example: Increasingly, through Treaty settlements, iwi are being given formal roles in relation to Crown land for which the Minister of Conservation is the accountable Minister, and management plans prepared for those lands. New grievances could arise if such arrangements were not considered relevant in establishing significance.
Proposed section 61C(3) provides that section 49 of the Conservation Act “applies with the necessary modifications”. The “necessary modifications” are not identified. Section 49 refers to the Minister of Conservation only. If the “necessary modifications” mean that the Minister accountable for the Crown Minerals Act has the same responsibilities as the Minister of Conservation, then stating that would add clarity. This request applies only if the NZCA’s recommendation above, that the Minister of Conservation remains the sole decision-maker for access arrangements to land set aside for conservation purposes, is disallowed.
Proposed section 61C(5) provides that Ministers have regard for the matters specified in section 61(2) only. The section 49 Conservation Act process referred to in 61C(3) requires Ministers [currently only the Minister of Conservation] to “consider the recommendation [of the Director-General of Conservation] and the contents of the summary [of all objections and comments received] before deciding whether or not to proceed with the proposal” There is therefore an inconsistency or at best an ambiguity between the two proposed sections meaning that the public process is, in effect, meaningless.
The NZCA recommends that
- proposed section 61C(2)(a) be extended by the words “and adjacent conservation land”
- proposed section 61C(2)(b) be extended by the words “and adjacent conservation land”
- proposed section 61C(2)(c) delete “net” and insert “and adjacent conservation land” after ‘land’
- proposed section 61C(2) insert an additional subsection “and the purpose for which the land is held by the Crown and any policy statement, strategy or management plan relating to the land”.
- proposed section 61C(3)(b) if the NZCA’s recommendation for clause 31 is disallowed then replace “with the necessary modifications” with specification of the modifications to include “except that the reference to Minister of Conservation in section 49(2)(d) and section 49(2)(e) is to the Minister and the Minister of Conservation”
- proposed section 61C(5) have inserted after “61(2)” the words “and, for activities publicly notified under section 61C(3) the recommendation of the Director-General of Conservation and summary of all objections and comments received”.
The NZCA wishes to speak to it submission. Its representation will be advised once the date and timing of the hearing is known.
Dr Kay Booth
- Crown Minerals (Permitting and Crown Land) Bill
- Crown Minerals Act 1991
- NZCA advice to the Minister of Conservation on mining April 2010
- NZCA advice to the Minister of Conservation on mining June 2010