Commissioner’s overview 5
1 Introduction 7
1.1 Purpose of the report 8
1.2 Structure of the report 8
1.3 What this report does not cover 8
Figure 1.1: Department of Conservation land 9
2 New Zealand’s conservation estate 11
2.1 History of New Zealand’s conservation estate 11
Figure 2.1: Timeline of major events and legislation relating
to the development of the public conservation estate 12
Box 2.1: A strange and wondrous land 12
2.2 Classifications of public conservation land 13
2.3 Ecological areas 14
2.4 Threats facing the conservation estate 14
Figure 2.2: Ship rat eating fantail nestlings. 14
3 Mining and its environmental impacts 15
3.1 Where are the minerals? 16
Figure 3.1: A map showing conservation land
and known mineral deposits 16
3.2 The mining process 17
3.3 Environmental effects of mining 17
Figure 3.2: The Oceania gold mine near Reefton
in the Victoria Conservation Park 18
3.4 Factors affecting environmental impacts of mining 18
3.5 Managing environmental impacts 19
4 Managing mining on the conservation estate 21
4.1 Requirement 1: Mineral permit 21
4.2 Requirement 2: Access agreement 21
Figure 4.1: Requirements for gaining approval
to mine conservation land 22
4.3 Requirement 3: Resource consents 23
4.4 Opportunities for public input 23
Figure 4.2: Trampers on the Routeburn Track 24
5 Granting access to mine on conservation land 25
5.1 A fundamental principle –
conservation must take precedence 25
5.2 The Government’s proposals 26
5.3 A lower hurdle for mining 26
5.4 A consistent national approach 27
Box 5.1: Biodiversity offsetting principles 28
5.5 Increasing transparency and public participation 29
5.6 Making mining companies pay their fair share 30
6 Conclusions and recommendations 31
6.1 The Minister of Conservation should remain the sole decision-maker on access 31
6.2 Access for mining needs to pass the same test as other commercial 32
6.3 Mining should provide net conservation benefit 32
6.4 Provide national guidance on access 33
6.5 Improve public access to information 33
6.6 Public participation in decision making 34
6.7 Include ecological areas in Schedule 4 34
7 Endnotes 35
From mountains to sea, New Zealand presents many beautiful landscapes, full of rich diversity. There are other treasures that lie within. Our mineral resources have been the target of activity over generations. From Māori use of pounamu for tools, weapons and ornaments to the European pursuit of gold and coal, people have sought to use the mineral resource that the land has provided.
Many of these mines are on land owned by the Crown. Indeed, there are over 57 mines currently operating on land within the public conservation estate, with the majority being for the extraction of coal and gold on the West Coast of the South Island.1
In August last year, the Minister for Energy and Resources, Hon Gerry Brownlee, raised the prospect of “unlocking New Zealand’s mineral potential”, beginning a vigorous public debate on the environmental impacts of mining, especially in relation to mining on public conservation land.2
In March this year, the Government released a discussion paper seeking public feedback on the “development of New Zealand’s extensive mineral estate”.3 Included was the proposal to remove 7,058 hectares currently protected by Schedule 4 of the Crown Minerals Act. Other policy initiatives are to change access arrangements to include the Minister of Energy and Resources as part of the decision-making process and the addition of almost 12,500 hectares of land to Schedule 4.
The prospect of mining on public conservation land, especially the land held within Schedule 4, struck a nerve with the public. At the time the Minister of Energy and Resources acknowledged that mining is an emotive issue.4 A number of protests were held around the country, including an estimated 40,000 people who marched through Auckland, seeking to give the Government a firm message to stay away from mining on conservation land.
The high level of public interest resulted in just over 37,500 submissions being made. In response, the Government decided not to remove any land from Schedule 4, with the Minister of Energy and Resources saying that the consultation process had determined “where the minerals industry can and can’t go”5. Instead the Government announced it would undertake aero-magnetic surveys of mineral potential in Northland and the West Coast.
The Government has also confirmed that they will pursue joint decision-making, meaning that both landholding Ministers and the Minister of Energy and Resources will need to sign off on applications from mining companies for access to Crown land, including conservation land.
The latest decisions from the Government indicate that more mining on land not on Schedule 4 will be encouraged. This land includes forest parks, conservation parks, stewardship areas, ecological areas, and scenic reserves. It covers over half of the conservation estate, and it is access for mining to this land that is the subject of this investigation.
This report has been produced pursuant to subsections 16(1)(a) and (b) of the Environment Act 1986.
The Parliamentary Commissioner for the Environment is an independent Officer of Parliament. Her role allows a unique opportunity to provide Members of Parliament with independent advice in their consideration of matters that may impact on the quality of the environment.
In April 2010, the Commissioner made a submission on the Government’s discussion document on mining (available at).
During the preparation of that submission a number of issues about mining on public conservation land were raised and the Commissioner decided to investigate them further. Thus the purpose of this report is to provide some practical guidance on aspects of mining on conservation land.
The remainder of the report is structured as follows:
Chapter 2 discusses the development of New Zealand’s public conservation estate and the threat posed by introduced pests.
Chapter 3 describes the location of minerals, different mining methods, and environmental impacts.
Chapter 4 outlines the regulatory framework for managing mining on conservation land.
Chapter 5 discusses various issues related to access for mining on conservation land, ranging from the Government’s new policy to increasing transparency and public participation.
Chapter 6 contains the conclusions of the report and seven recommendations from the Commissioner.
This report is available on the Commissioner’s website,.
1.3 What this report does not cover
This report is focused on the 60% of the land managed by the Department of Conservation where mining can currently occur, that is, the land not listed on Schedule 4 of the Crown Minerals Act (see Figure 1.1). It is specifically concerned with access on to this land for mining. Therefore, issues like changing the current rules governing prospecting for minerals on Schedule 4 land are not considered.
The environmental impacts of mines operating on conservation land are controlled by two sets of conditions. The first are the conditions on access to the land imposed by the Department of Conservation. The second are the conditions in the resource consents issued by local authorities under the Resource Management Act. This report is concerned with the roles and responsibilities of the Minister of Conservation and the Department of Conservation, not those of local authorities.
Recently there has been discussion over the potential to mine the seabed, such as in the Kermadec trench. Such developments also lie outside the scope of this report.
Climate change is the greatest environmental challenge of our time. Coal whether mined on conservation land or anywhere else will be burned and emit a high amount of carbon dioxide per unit of energy – about twice as much as natural gas. The wider issue of the carbon dioxide generated from the combustion of coal is set aside from this report, but is addressed through other work undertaken by the Commissioner.
Figure 1.1: Department of Conservation land
2. New Zealand's conservation estate
New Zealand is renowned internationally for its unique animal and plant life, as well as some of the most spectacular landscapes in the world. That New Zealanders recognise the special status of their lands is reflected in large and varied conservation areas – both public and private.
This chapter outlines a broad history of the public conservation estate; that is, all Crown land designated as conservation land. This history includes the changing purposes and management of the estate, as well as the key threats facing the species and ecosystems within it.
2.1 History of New Zealand's conservation estate
New Zealand’s public conservation estate has evolved over time (see Figure 2.1). The first significant area protected for conservation purposes was Tongariro National Park in the late 1800s.6 New Zealand began to systematically protect areas for conservation purposes from 1903 under the Scenery Preservation Act.
Much of our agricultural land was created by the felling of forests and the draining of wetlands to create ‘productive’ land. Consequently, much of the conservation estate is made up of land not suitable for farming or forestry, such as mountainous areas and rugged country. These areas may also contain impressive landscapes that the early conservation efforts were focused on protecting.
From the early part of the 20th century, the focus on conserving landscapes was largely replaced by a policy of multiple use (‘wise use’) of forests.7 This lasted until the public sector reforms which began in 1984 and differentiated between ‘productive’ and ‘conservation’ lands. In 1987, the Department of Conservation 8 was established as the central government agency responsible for the management of the public conservation estate. The department is now responsible for protected areas - including 14 national parks - that cover a total of 8.5 million hectares, or 35% of New Zealand’s land area.9
The focus on conserving non-productive high lands and rugged areas meant many ecosystems fell outside the conservation estate. 10 The Department of Conservation has identified lowland forests, wetlands and sand dunes as high conservation priorities.11 Successful protection of these areas will also require the co-operation of private landowners, on whose land these habitats occur.
There are mechanisms available to set aside private land for conservation purposes. These include Queen Elizabeth II National Trust covenants, Nature Heritage Fund covenants, or Ngā Whenua Rāhui Kawenata. New Zealand is also a signatory to several international conservation conventions.12
Figure 2.1: Timeline of major events and legislation relating to the development of the public conservation estate
The value of conservation land
Public conservation land is held and managed for a wide range of purposes. These include protecting natural and cultural heritage, retaining areas of wilderness and enabling recreation opportunities.13 New Zealand’s isolation has resulted in many diverse and unique species found nowhere else in the world (see Box 2.1).
Box 2.1: A strange and wondrous land
New Zealand floated away from the ancient landmass Gondwanaland some 65 million years ago – before the evolution of mammals. As a result, many of our insects, reptiles and birds have evolved into the roles filled by mammals elsewhere. Thus, giant weta are equivalent to armoured, hairless mice, and kiwis are like large, feathered, shaggy hedgehogs.
The lack of mammalian predators also means many of our species never developed or have lost their predator defences. This includes the power of flight and fast breeding cycles with many young. The kakapo’s response to predators, for example, is to sit very still on the ground. This works well against a visually hunting predator such as the extinct native eagle, but has no effect against a stoat or dog hunting by smell. Similarly, our native plants lack defences (toxic chemicals or hard unpalatable leaves) against browsing mammals. This makes them particularly vulnerable to over-grazing by species such as possums, deer and goats.
2.2 Classifications of public conservation land
The conservation estate contains a large number of different classifications or categories of protected land. The most significant four classifications in terms of area are national parks, conservation parks, ecological areas and stewardship areas.
As well as these classifications, land can also be included in Schedule 4 under the Crown Minerals Act. Land in Schedule 4 is essentially closed to mining. Specific areas of land are included in Schedule 4 rather than classes of land, although some classes such as national parks are included in Schedule 4 in their entirety.
The main conservation classifications are:
National parks (3 million hectares14) are the largest area in the conservation estate. According to the National Parks Act 1980 these areas represent and protect beautiful, unique, or scientifically important natural features, intrinsic value, and opportunities for public recreation.15 All national parks are included in Schedule 4.
Conservation parks (1.9 million hectares16) are managed under the Conservation Act 1987 to protect their natural and historic resources, while providing for public recreation. Many were set up as forest parks, for example, Tararua Forest Park, but newer conservation parks in the South Island high country include other types of habitat, such as tussock.
Ecological areas (176,000 hectares17) were identified as representative samples of ecosystems. Only one of 55 ecological areas is included in Schedule 4. These areas are examined in more detail in the next section.
Stewardship areas (2 million hectares18) are primarily forest lands that have been transferred to the Department of Conservation with no protected status at the time of transfer.19 The conservation value of different stewardship areas has not been systematically assessed. These areas may be reclassified in the future if specific conservation values (such as landscape, flora, or fauna) are identified.20 Stewardship areas are generally not included in Schedule 4.
Other classifications that apply to conservation areas
There are many other types of conservation classifications including scenic reserves, nature reserves, scientific reserves, marine reserves, sanctuary areas, wilderness areas and wetlands of international importance.21 These all aim to protect specific values of a place, and maintain areas in their natural state as far as possible.
How conservation land is classified will determine how it is managed. That includes what the conservation goals are and types of activities that can take place. However, land within classification types is very diverse and the classification should not be relied on as an indicator of the conservation value of a particular site.
2.3 Ecological areas
There are 55 ecological areas in New Zealand covering 176,000 ha.22 Ecological areas were created by the New Zealand Forest Service as representative examples of the full range of ecosystems that occur within identified ecological regions. Reasons for reserving these areas include conserving representative areas of indigenous forest, preserving unique areas of indigenous forest habitat or topography, and providing reference areas to compare with managed (i.e. logged) indigenous forests. Some of these ecological areas have subsequently been reclassified and included within other conservation lands such as national parks. The majority of the remaining ecological areas are located on the West Coast. These were managed by Timberlands, before being transferred to the Department of Conservation in 2000.
Ecological Areas were systematically assessed and specifically set aside for their ecological values.23 When Schedule 4 was added to the Crown Minerals Act, the conservation significance of ecological areas was not well documented. As a consequence, only the Otahu Ecological Area was included. While other ecological areas could be added to Schedule 4, to date none have. The representative significance of ecological areas suggests that they should be included in Schedule 4. In some cases, it may be that an ecological area has been so degraded that it is not appropriate to add it to Schedule 4, but this should be the exception.
2.4 Threats facing the conservation estate
The threat of mining on Schedule 4 land galvanised thousands of people around the country. However, the most significant and pervasive threat to the conservation estate is the threat to biodiversity from introduced pests, both plants and animals (floater).24 While commercial activities, such as mining, may have a major localised impact on the estate, introduced pests remain the biggest problem.
For example, stoats kill around 40% of all juvenile kiwi and without active management only about 5% of all kiwi chicks make it to adulthood.25 Many other native species face similar threats.
Active management means either controlling predators or providing refuges from predation - such as building predator-proof fences or removing species to locations that are free of predators. Clearly, this is costly.
Figure 2.2: Rat eating bird's egg
3. Mining and its environmental impacts
Mining on the conservation estate already takes place. There are 57 mines on land within the public conservation estate.26 The bulk of these are for the extraction of coal and gold on the West Coast of the South Island. This chapter explores why there is mining on conservation land, and provides background information on the mining industry: what is mining, what impacts it can have, and how those impacts can be managed.
3.1 Where are the minerals?
New Zealand is a geologically active country. It straddles two major tectonic plates that are moving against each other. These continental plate and fault movements have created the country’s rugged and varied landscape and its mineral deposits. Different geological processes across the country have resulted in different types and concentrations of minerals. For example, deposits of gold, silver and copper around the Coromandel Peninsula and Taupo are associated with volcanic activity. In contrast, coal deposits on the West Coast are associated with sedimentary processes.
Many of New Zealand’s mineral deposits are found within the conservation estate (see Figure 3.1). The reason is that many of our mineral deposits are located in same remote and hilly landscapes that make up most of the conservation estate. In some cases, the very areas which contain our best remaining examples of native ecosystems also have high mineral potential. That is why it is critically important to have clear guidelines on when, where and how mining can take place on the conservation estate.
Figure 3.1: A map showing conservation land and known mineral deposits
Map showing overlap of mineral deposits and conservation land.
3.2 The mining process
The development of a mine takes place in a three-stage process: prospecting, exploration and extraction. As it progresses through each stage the environmental impact increases.
The aim of prospecting is to identify where minerals of interest might be present without drilling. Initially a desktop exercise, follow-up field techniques include aerial surveys and ground-based fossicking. Generally, prospecting has a relatively low level of environmental impact.
When minerals are identified through prospecting, the next step is exploration. One method is to drill cores through the mineral deposit to find out how large and concentrated the deposits are. A drilling rig is required to drill cores. The exact environmental impacts of exploration will depend on things such as the size of the rig, its operation, and how it is transported to the site.
Extraction is the most environmentally damaging stage. The most common extraction methods in New Zealand include open cast, dredging and underground mining.
• Open cast mining: Used in situations where the minerals are relatively shallow or less concentrated. The Oceania gold mine at Reefton is an open cast mine on the conservation estate (see Figure 3.2).
• Dredging: Used where mineral deposits at the surface have been weathered away and have found their way into rivers, yielding ‘alluvial’ deposits downstream. Dredging for alluvial gold deposits has been practised in the South Island for many decades.
• Underground mining: Used for deposits at greater depth, higher grade deposits, or vein ores (for example, gold deposited in quartz veins). It is generally more expensive, but less environmentally destructive than open cast. The Pike River coal mine on the West Coast and the Favona gold mine on the Coromandel are two examples of underground mines.
In this report, ‘mining’ is taken to be extraction.
3.3 Environmental effects of mining
It is difficult to generalise about the environmental impacts of mining. However, they can be separated into direct and indirect impacts.
Direct impacts of mining
Types of impacts that result in the direct physical disturbance of the environment can include: the clearance of vegetation and removal of soil in open cast mines, the diversion or modification of waterways, and the dumping of soil and rock as overburden. These activities can directly affect the plants and animals that occur in the area, either by killing them outright or displacing them.
Indirect impacts of mining
These impacts come from the processes and activities associated with the mining operation. They can be more serious than direct impacts. For example, water quality in water bodies outside the mine site can be affected – often for many years after the mine has closed - by sediment, acid mine drainage27 or the leaching of toxic chemicals used in the extraction.28 In cases where the ore has been chemically extracted, mine tailings can be a source of contamination themselves. Mining roads can also act as convenient access ways for pest plants29 and potentially animals.
Figure 3.2: The Oceania gold mine near Reefton in the Victoria Conservation Park
3.4 Factors affecting environmental impacts of mining
The actual environmental impact of a mine will depend on the type of mineral, the mining process that is being used, the vulnerability of the surrounding area, and the timescale over which impacts are considered.
The extraction of different minerals can have different impacts on the surrounding environment. For example, gold deposits can be accompanied by arsenic, lead and mercury. These can leach into surrounding land and waterways when the gold is mined.
Method of extraction
Open cast mining is far more environmentally damaging than underground mining. For example, the construction of an entranceway for an underground mine may displace a small number of individual birds, but not affect their long term survival or breeding success. In comparison, it may take tens to hundreds of years following the clearing of old growth forest for open cast mining for a similar forest to develop.
Vulnerability of surrounding area
Impacts will also depend on the physical characteristics of the mine’s location. For example, high rainfall increases the chance of damaging contaminants flowing into rivers. In wet areas such as the West Coast the effect can be significant if not managed well. As discussed in a previous report, Stockton revisited: The mine and the regulatory minefield, high rainfall (up to 8 m per year) on the Stockton Plateau meant that Solid Energy had to invest a lot of time and resources to improve the quality of water flowing from its open cast mine into the local Ngakawau river.
Environmental impacts also need to be considered over different timescales. Some impacts may be short lived, while others may last for years, or be permanent.
3.5 Managing environmental impacts
When evaluating a proposal for access, it will not always be possible to manage the environmental impacts of a mine in a way that is consistent with the intent of the Conservation Act. This may mean that the only option is to decline access.
If access is granted, then conditions will be placed on that access by the Department of Conservation. These conditions will be additional to those set by the local authority in the resource consents.
The conditions placed by the department can and often should be of different kinds.
• Minimisation of damage to the conservation estate
• Rehabilitation of the site
• Monetary compensation for residual damage
• Other forms of compensation such as ‘biodiversity offsetting’
The challenges include identifying and quantifying the conservation value of landscapes, species and ecosystems, and ensuring that the compensation is continued for the lifetime of the impact.
In all cases, good processes, monitoring, and enforcement are required to ensure that the proposed mitigation of environmental impacts occurs and is effective.30
Each mining operation’s impact will be different depending on size, method of extraction and the mineral sought. Because of these differences each mining proposal must be individually assessed. However, comprehensive national guidelines can ensure that an appropriate conservation plan is implemented and that it achieves the desired results.
Management of mining on the
4. Managing mining on the conservation estate
The Crown manages mining on the conservation estate in two main ways. The first is by deciding on the allocation of mineral rights to mining companies. This is the responsibility of the Minister of Energy. The second is by implementing conditions to control the environmental impacts of the mining operation. This responsibility is split between the Minister of Conservation and local authorities.
There are three requirements for gaining approval to mine on public conservation land.
• Mineral permit: The mining company must acquire rights to the minerals from the Minister of Energy under the Crown Minerals Act 1991.
• Access agreement: The company must get permission to access the land from the Minister of Conservation under the Crown Minerals Act 1991.
• Resource consents: The company must obtain resource consents from the relevant local authorities under the Resource Management Act 1991.
4.1 Requirement 1: Mineral permit
A minerals permit31 gives the holder the right to prospect, explore, or extract minerals in a specific area. Mineral permits must be issued in accordance with the government’s mineral programme.
The mineral programme sets out the government’s policies in relation to the allocation of mineral rights and what royalties must be paid. They are publicly available from the Ministry of Economic Development.32 The mineral programme does not consider environmental impacts. 33
4.2 Requirement 2: Access agreement
Although the holder of a minerals permit has a right to the minerals, the holder cannot access land without the permission of the landowner. For conservation land this means they must have an access agreement with the Minister of Conservation.34 The Ministercan refuse access.35
Department of Conservation staff evaluate the application and recommend to the Minister of Conservation whether access should be granted, and if so, what conditions should be imposed to protect against damaging conservation land. The mining company may also need to provide compensation for the impact of the activity.36 Compensation can include pest control work or protecting native species.37 Sometimes the Department of Conservation will require a bond based on the cost of rehabilitation, to ensure compliance should the miner default, for instance by going bankrupt.38
Figure 4.1: Requirements for gaining approval to mine on conservation land
The criteria that the Minister of Conservation must have regard39 to when considering an application for access are detailed in the Crown Minerals Act.40.
Commercial concessions on conservation land
All commercial activities on conservation land, other than mining, require a concession - issued under the Conservation Act - from the Department of Conservation. A concession can only be granted if the activity is not “contrary to the provisions of this Act or the purposes for which the land concerned is held.”41 This is a much higher bar than the test for mining. If the concessions criteria applied to mining, the Minister of Conservation would be prohibited from granting access unless the impacts could be managed consistently with the purpose for which the land is held.
Additional activities associated with the mining, but not included in the mining permit (for example, construction of infrastructure such as an access road) still have to be authorised by a concession.42 A concession can take different legal forms, and may be an easement, a lease, licences or permit.43
The Department of Conservation has recently completed a review of its concession process to improve its processes and decision making for granting concessions under the Conservation Act 1987.44 Many of the issues identified in the review are also relevant to access arrangements for mining under the Crown Minerals Act. In particular:
• the acknowledgement that people using public resources for commercial gain should pay for that benefit
• opportunities for public participation should be improved
• the decision making processes should be streamlined and simplified
• national support for decision making at the conservancy level should be improved.
Standardising access arrangements for mining
While the Minister of Conservation holds responsibility for decisions made about mining on conservation land, most negotiations and decisions are delegated to the conservancy level. The Department of Conservation is preparing a national standard operating procedure45 to standardise processing and administration of access arrangements for mining across conservancies.
Generally, an application for an access arrangement is lodged with the local conservancy office. Conservancy staff coordinate the information gathering, including a site visit and assessment by the local area office staff, and produce a departmental report recommending that access is approved or denied. Local knowledge and expertise sit with the conservancy office, while other experts can be called in to assist with the assessment.
4.3 Requirement 3: Resource consents
In addition to a minerals permit and access agreement, a mining company must also obtain whatever resource consents are required under the Resource Management Act (RMA).46 The actual consents required will differ depending on the applicable regional council or territorial authority’s individual resource management plan.47 These local authorities are also responsible for the monitoring and enforcement of any consent conditions.
Resource consents for mining will typically include conditions on air and water quality, limits on water takes, tailing dam standards, and conditions for any major land clearance and rehabilitation. The councils are responsible for impacts on amenity, earthworks, traffic impacts, noise (including vibration) and dust control from any blasting. Both regional councils and territorial authorities can impose a financial bond to ensure compliance with a condition of resource consent.
There is likely to be overlap between the resource consent conditions and those imposed under an access agreement to conservation land. The legislative requirements for access agreements and the resource consents are not linked. While there is likely to be liaison at conservancy level, there is no formal link between the two processes.
4.4 Opportunities for public input
The Government has determined in principle that significant applications to mine on public land should be publicly notified. This would be a welcome improvement over current practice. Currently public input is limited to the resource consent stage, even though mining on conservation land attracts considerable public interest.
5. Granting access to mine on conservation land
The Government is currently planning to change the way that access to mine land owned by the Crown should be granted. These changes would apply to the 60% of the conservation estate not listed on Schedule 4 of the Crown Minerals Act.48
This chapter assesses the way in which access for mining is currently granted and the Government’s new policy. Further, changes and improvements are suggested which should lead to better outcomes for conservation and potentially increase public trust.
5.1 A fundamental principle – conservation must take precedence
The Minister of Conservation holds the conservation estate in trust for New Zealanders49 for many purposes, including the protection of natural and cultural heritage, recreation and conservation of wilderness areas.50
This is not to say commercial activities including mining should not occur on the conservation estate, but managing the conservation estate responsibly means that the first priority is to safeguard the purposes for which the estate is held. To do otherwise is to fundamentally change the rationale of the Conservation Act.
There are some circumstances when mining could benefit the conservation estate and the purposes for which it is held.
The largest and most pervasive threat facing native species and ecosystems on the conservation estate is introduced pests, both plants and animals.51 Pests can even damage landscapes – the wilding pine invasion of the South Island high country is a worrying example. Current and projected public funding is and will not be enough to stop pests wiping out much of our unique biodiversity.52 Commercial use (including mining) of the conservation estate offers an opportunity to address some of that funding shortfall.
Mining companies wanting to use the estate for commercial gain should do more than just rectify any damage. There is no reason why the Crown should not earn income from this huge asset, provided the conservation value of the estate is protected, or better still, enhanced. Mining could and indeed should provide benefits for the purposes for which the conservation estate is held. This means that any monetary payments should be made to and retained by the Department of Conservation.
5.2 The Government’s proposals
The Government’s proposed changes are:
1. Decisions regarding access to land for mining activities will be made jointly by the Minister of Conservation and the Minister of Energy and Resources. Currently, the Minister of Conservation makes these decisions.
2. Consideration of the economic, mineral and national significance of proposals for access will be added to the matters that must be considered under the Crown Minerals Act 1991. Currently, the matters that must be considered relate to the purpose for which the land is held – namely, conservation.
These proposed changes fundamentally alter the original intent of the Crown Minerals Act, in which a key principle is to distinguish between the granting of rights to the minerals and the granting of access to the land under which the minerals lie.
Currently, under the Crown Minerals Act the Minister of Conservation decides if access should be granted to a mining company and how the impacts of the mining activities can be managed or compensated for. The Minister as the sole decision maker is accountable to the public for safeguarding the conservation estate.53 The Minister is both responsible for the decision made and accountable for the outcome – the effect on the conservation estate.
In contrast, if the Minister of Energy and Resources becomes a joint decision maker, then the power to make access decisions will be shared, but the accountability for the outcome will not.
It is a basic principle of good governance that power and accountability are aligned.
Underlying the Government’s proposals is the principle of balancing conservation and economic values. This is at odds with the principle discussed above – namely, that conservation should take precedence on the land managed by the Department of Conservation.
5.3 A lower hurdle for mining
Requests for access to mine on conservation land must pass a test under the Crown Minerals Act. Requests for access for other commercial activities must however pass a much stronger test under the Conservation Act.
When the Minister of Conservation considers a request for access for mining, she/he must only “have regard to” the purposes for which the land is held – namely, conservation.
However, when she/he considers a request for access for other commercial uses by granting a concession, the test is much stronger: “The Minister shall not grant an application for a concession if the proposed activity is contrary to the provisions of this Act or the purposes for which the land concerned is held.”54
This special status of mining appears to be a legacy of the even more special status it enjoyed prior to the Crown Minerals Act.55
5.4 A consistent national approach
There is considerable room for improvement to the way in which access is granted for mining on the conservation estate. More can be done to effectively safeguard the conservation estate and to realise the potential for mining operations to provide a net conservation benefit.
According to the Government the current system for granting access to conservation for mining is frustrating for both the Department of Conservation and mining interests.56 This is partly because different conservancies make decisions about allowing mining access independently using their own criteria. The Department of Conservation is preparing standardised national procedures for assessing mining access to rectify this problem.
A consequence of the conservancy system is that it can be difficult to consider the conservation estate as a whole when deciding whether the proposed management of a mining company’s plan is sufficient. Instead, the current system encourages conservancies to only consider compensation and management options within their own boundaries.
To improve the possibility of mining delivering a net conservation benefit a national approach is needed for managing mining (and other commercial uses) of the conservation estate.
It is particularly urgent to develop a national approach to biodiversity offsetting.
Example: National guidelines for biodiversity offsetting
Biodiversity offsetting is enhancing the value of other areas as compensation (or betterment) for the loss of some conservation value due to a mining operation. Offsetting is controversial and consequently should be done with great care (see Box 5.1). It is not a substitute for avoiding or reducing environmental damage at the mine site, and should only be considered as an option to compensate for residual unavoidable impacts. At present offsetting is ad hoc and there are no clear national guidelines or consistency on how to evaluate proposals.
A national approach to biodiversity offsetting would allow a wider range of options for compensating the impacts of mining. A small number of organisations have trialled or are using biodiversity offsetting, for instance Solid Energy as part of its mining operations on the West Coast.
The Department of Conservation is currently leading a research project to develop a national system for biodiversity offsetting.57 The prospect of greater commercial use (including mining) of the conservation estate means this project is urgent.
Box 5.1: Biodiversity offsetting principles
To help consider when and where biodiversity offsets may be an appropriate option, the following six principles have been proposed by Professor David Norton at the University of Canterbury:58
1. Biodiversity offsets should only be used as part of a hierarchy of actions in which a development project must first seek to avoid impacts and then minimise the impacts that do occur.
2. Some form of guarantee must be provided that the offset proposed will occur.
3. Biodiversity offsets are inappropriate for certain habitat types because of their rarity or the presence of particular species in them makes the clearance of these habitats inappropriate under any circumstances.
4. Biodiversity offsets can involve protection of existing habitat, but most often involve the creation of new habitat.
5. A clear currency is required that allows transparent quantification of values likely to be lost and values likely to be gained to ensure equivalency between cleared and offset areas.
6. Determining offsets must take into account both the uncertainty in obtaining the desired outcome for the offset area, and the time-lag involved in reaching this point.
Making assessments at the conservancy level
It is important to avoid the expectation that a nationally consistent process will mean similar proposals for mining access will have the same outcome. Every site is different. Detailed evaluation of conservation value at a particular site and of the impacts of a particular mining proposal must still be done by conservancy staff. However, guidelines for conducting such evaluations should be national.
For example, national guidelines for conservancy staff evaluating the biodiversity significance of a site could include the requirement to assess the following:
• the presence of rare or threatened species and the importance of the particular area for those species in terms of their distribution and extinction risk
• the rarity or representativeness of the particular habitat or ecosystem in question
• estimates of ecosystem health or functioning, such as intact pollination cycles59 or food webs.60
5.5 Increasing transparency and public participation
Greater public input and transparency on decisions to mine public conservation land are critical for ensuring public trust in the management of the public conservation estate.
Making information readily available
Information on all mining permits is easily accessible from the Crown Minerals website.61 In contrast, the Department of Conservation does not make information about mining on conservation land readily available. In some cases, information must be obtained through Official Information Act requests.
The most effective (and possibly efficient) way to improve public trust in the Department of Conservation’s management of mining on conservation land is to develop a website. Ideally the website would include:
• lodged applications for permits or access agreements62
• existing mining permits on conservation land
• existing access agreements, including the operational requirements to avoid or mitigate impacts, compensation, offsetting agreements and bonds
• links to relevant resource consents
• information on the conservation value of the mining sites
• links to other DOC databases on species distributions, habitat types and threats.63
Providing for public input
The first time the public has any opportunity to submit on a mining proposal on conservation land is during the resource consent process.
The Government is proposing to address this by providing for public input on significant mining applications under the Crown Minerals Act. This would put the notification of mining applications on a similar footing to other commercial uses under the Conservation Act.
However, the Conservation Act only requires the Minister to publicly notify a decision to grant a concession.64 This is unsatisfactory because the decision is widely seen as largely predetermined at the point of public notification.65 The Concessions Review Panel proposed that the Conservation Act be amended to require notification of an application, as opposed to notification of the intention to grant.66
The Government should adopt the Panel’s proposal for the notification of mining applications, so that public submissions on mining applications are included in the information considered by the Minister. A further opportunity to improve public input could be to align consultation under the Crown Minerals act with consultation under the Resource Management Act.
5.6 Making mining companies pay their fair share
Commercial users of public conservation land seek to earn a profit from the use of that land. One of the key functions of the concessions process under the Conservation Act is to make sure that the public will benefit from any such commercial activity.67 However, under the Crown Minerals Act, mining companies are only required to compensate for the damage caused by their activities. Mining companies should face the same financial obligations as other private users of the conservation estate.
Under the Conservation Act, the Department of Conservation receives income from granting commercial users (concessions) access to the public conservation estate. This is in addition to any compensation for damage to conservation estate. There is no reason why the Department of Conservation should not also receive income from mining. This should be considered separate from mining royalties, which are a return on mineral assets, not a return on the right to access the land.
6. Conclusions and Recommendations
The conservation estate is held in trust for current and future New Zealanders. “Clean and green” is more than just a marketing brand – it is how we as New Zealanders increasingly identify ourselves and differentiate our country from others. The land managed by the Department of Conservation is critical in protecting biodiversity, unique ecosystems and landscapes, and allowing our tourists and ourselves to experience wilderness.
This investigation was triggered by the Government’s recent proposal that approvals given to mining companies for access to conservation land be jointly decided by the Minister of Energy and Resources and the Minister of Conservation. The examination of this issue led to a broader investigation of the framework and processes that apply to access agreements. As a result, this final chapter contains a total of seven recommendations.
6.1 The Minister of Conservation should remain the sole decision-maker on access
Mining is off-limits on the 40% of the conservation estate listed on Schedule 4 of the Crown Minerals Act. The process by which mining companies are enabled to extract minerals from the remaining 60% currently involves two Ministers. The Minister of Energy and Resources grants permits for the minerals under the ground. The Minister of Conservation grants access to the land above the minerals.
This differentiation of functions and powers is a fundamental principle of the Crown Minerals Act. Equally fundamental to the Conservation Act is that the Minister of Conservation is the guardian of the conservation estate. Protecting the conservation purposes of that land must take precedence over commercial use.
The proposal for the two Ministers to jointly decide access to conservation land for mining is at odds with a basic principle of good governance, namely that the power to make a decision should be aligned with the accountability for the outcome of that decision.
I recommend that:
1. Parliament does not support legislation that requires decisions on access to public conservation land for mining to be made jointly by the Minister of Conservation and the Minister of Energy and Resources.
6.2 Access for mining needs to pass the same test as other commercial uses
Mining is already treated differently to other commercial uses on conservation land. The legal test for access applied by the Minister of Conservation in considering applications for mining access is different from that for access for other commercial uses.
In considering access for mining, the Minister need only “have regard “ to the objectives of the Conservation Act and the purposes for which the land is held. In other words, the conservation value of the land need not take precedence over the economic value of the mine.
In considering access for any other commercial activity, the Minister must not grant a concession if the activity would damage the conservation value of the land.
There is no reason why mining applications should be required to meet a lower test than other proposals for commercial use of the conservation estate. It has been indicated that legislation will be introduced amending the Crown Minerals Act later this year. This provides an opportunity to make the amendment suggested below.
I recommend that:
2. The Minister of Energy and Resources and the Minister of Conservation introduce legislation to ensure that all proposals for access to the conservation estate for commercial uses can only be granted if consistent with the purpose for which the land is managed.
6.3 Mining should provide net conservation benefit
The conservation estate is a major Crown asset. When it is used for commercial gain, the Crown is justified on seeking a return on this asset. Any private landowner allowing access to their properties would ensure that a payment was made for that access as well as compensation for any damage. A royalty is a return on the mineral asset, not a return for the right to access the land.
Payments for access rights should be used to benefit the conservation estate. Mining companies should do more than just compensate for the damage they cause. The provision of a net conservation benefit would give the Crown a return on this asset. However, the prospect of additional revenue to the Department of Conservation should not be used as a reason for cutting baseline funding – the battle against introduced pests is not being won.
I recommend that:
3. The Minister of Conservation ensure that mining operations on public conservation land provide a net conservation benefit as well as compensating for the damage they cause.
6.4 Provide national guidance on access
Different conservancies make decisions about allowing mining access independently using their own criteria. Assessment of applications for access should certainly be done by conservancy staff who have the required local knowledge. However, national guidance on how to evaluate the conservation value of sites, the impact of proposed mining operations, criteria to be used in making decisions and setting conditions on access would increase efficiency and provide consistency.
Currently, Department of Conservation staff are drafting a national Standard Operating Procedure for decisions on access to the conservation estate. However, it appears to be focussed on assigning roles and responsibilities for making decisions rather than providing guidance on how decisions should be made.
One of the limitations of the conservancy system is that it does not easily allow consideration of the conservation estate as a whole when considering offsetting (or betterment) options. Instead, the current system encourages decision makers to only consider such options within conservancy boundaries.
I recommend that:
4. The Minister of Conservation directs officials to develop a nationally consistent framework and guidelines for evaluating applications for mining on public conservation land and setting access conditions.
6.5 Improve public access to information
Mining on the conservation estate has been and will continue to be a fraught issue, despite the Government’s recent decision to not take any land out of Schedule 4, at least for the meantime. Having to obtain information on mining on conservation land through requests under the Official Information Act does not engender public trust.
Making information readily available on a website would increase transparency and go some way toward greater public trust. Information included on such a website should cover existing permits and access agreements with attached conditions, as well as lodged applications and proposed conditions including offsetting agreements.
People should then be able to easily answer questions such as: What mines are currently operational on conservation land? Where are those mines? What safeguards are in place?
I recommend that:
5. The Minister for Conservation improves public access to information about mining on public conservation land by making relevant information readily available on the internet.
6.6 Public participation in decision making
It is pleasing to see that the Government has agreed in principle that significant applications to mine on public conservation should be publically notified. However, there is no detail on how that public submission process will work, nor on what would consititute a significant application. Submitters should have adequate information and a genuine opportunity to influence decisions. Moreover, this opportunity should be extended from just significant applications for access for mining to all significant applications for access to conservation land.
I recommend that:
6. The Minister of Conservation ensures that all significant applications for access to conservation land be publically notified and that ‘significant’ be defined so it applies consistently to all conservancies.
6.7 Include ecological areas in Schedule 4
There are 55 ecological areas in the conservation estate covering 176,000 ha. They were created as representative examples of the full range of ecosystems that occurred within identified ecological regions and districts. Only one of the 55 - the Otahu Ecological Area – is listed on Schedule 4.
Ecological areas have been assessed and specifically set aside because of their ecological value. However, it is possible that since the assessments were done, some of the 55 ecological areas may have been degraded. But there is a strong case for including those that have not been significantly degraded on Schedule 4 to ensure their protection. This can currently be done by Order in Council.
However, the Government proposes amending the Crown Minerals Act to ensure that conservation areas falling into certain classes (like national parks) will automatically be included in Schedule 4. An alternative way ahead would be to reclassify the ecological areas that should be added to Schedule 4 into classes that automatically qualify for inclusion.
I recommend that:
7. The Minister of Conservation adds all ecological areas to Schedule 4 unless there is a good reason for excluding some.