POWELLIPHANTA AUGUSTUS INC (FORMERLY SAVE HAPPY VALLEY COALITION INC) V SOLID ENERGY NZ LIMITED HC CHCH CIV-2006-409-002993

POWELLIPHANTA AUGUSTUS INC (FORMERLY SAVE HAPPY VALLEY COALITION INC) V SOLID ENERGY NZ LIMITED HC CHCH CIV-2006-409-002993 30 April 2007IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV-2006-409-002993UNDER the Resource Management Act 1991 IN THE MATTER OF an appeal under section 299 of the Act BETWEEN POWELLIPHANTA AUGUSTUS INCORPORATED (FORMERLY SAVE HAPPY VALLEY COALITION INCORPORATED) Appellant AND SOLID ENERGY NEW ZEALAND LIMITED First Respondent AND BULLER DISTICT COUNCIL Second Respondent AND WEST COAST REGIONAL COUNCIL Third Respondent Hearing: 6 March 2007 Counsel: Q A M Davies and P D Anderson for Appellant H Rennie QC and S M Grieve for First Respondent C E Robinson and P Leeming for Second and Third Respondents Judgment: 30 April 2007JUDGMENT OF PANCKHURST J Is a coal mining licence susceptible to RMA enforcement powers?[1] Powelliphanta Augustus Incorporated applied to the Environment Court for a raft of declarations and enforcement orders against Solid Energy New Zealand Limited. It sought to prevent Solid Energy continuing to mine the ridgeline of Mt Augustus on the Stockton Plateau in a manner which would endanger the Powelliphanta Augustus snail and its habitat. It failed in the Environment Court,because the Court was satisfied that the enforcement powers under the Resource Management Act 1991 (RMA) were not available against the holder of a coal mining licence. [2] Solid Energy mines the Mt Augustus ridgeline pursuant to a coal mining licence granted to its predecessor under the Coal Mines Act 1979. This circumstance, and a transitional provision in the Crown Minerals Act 1991, led the Environment Court to the conclusion that it had no jurisdiction to invoke the enforcement powers under the RMA against Solid Energy. [3] This appeal represents a challenge to that jurisdictional conclusion.Some background[4] The relevant coal mining licence is 37/150 which was granted on 16 October 1990 for a term of 40 years commencing on 1 April 1987. [5] In 1991 both the Crown Minerals Act 1991 and the Resource Management Act 1991 (RMA) came into force, with the result that an entirely new regime for mining minerals in New Zealand became effective. However, s107 of the Crown Minerals Act provided for "existing privileges to continue". Coal mining licences are within the definition of "existing privileges". I shall need to refer to the actual terms of s107, shortly. [6] In 1997, consequent upon a name change, Solid Energy assumed the rights under coal mining licence 37/150. The largest coal mine operated by Solid Energy is at Stockton north of Westport. This is an extensive open caste coal mine which has existed for many years. [7] In late 2005 Solid Energy intended to commence mining in the vicinity of Mt Augustus pursuant to licence 37/150. The focus of mining in this area is a ridgeline which runs both north and south of Mt Augustus. The mining operation will involve removal of the ridgeline itself, to expose an extensive underlying seamof coal. It is estimated that approximately 2.5 million tonnes of premium coking coal will be extracted from the ridgeline. [8] Powelliphanta is a giant land snail found in New Zealand. There are about 24 species of Powelliphanta, some at least of which are threatened with extinction. Powelliphanta snails exist on the Stockton Plateau, including in areas mined by Solid Energy. [9] In 2004 a colony of Powelliphanta snails were found near Mt Augustus. These are now known as Powelliphanta Augustus, since they may comprise a new species of snail. Debate as to that issue continues. What is clear, however, is that the habitat of Powelliphanta Augustus lies within the area which Solid Energy is entitled to mine pursuant to licence 37/150. [10] In 2005 Solid Energy sought a permit under the Wildlife Act 1953. Pursuant to that Act wildlife (with some exceptions) is absolutely protected. Accordingly, before Solid Energy could proceed to mine the Mt Augustus area, it required a wildlife permit authorising a management plan designed and intended to secure the protection of Powelliphanta Augustus snails. In broad terms, Solid Energy formulated a plan to relocate snails, and areas of their habitat, to a safe location outside the mining area, with a view to their relocation back to the original habitat upon completion of the mining operation. [11] In early 2006 a wildlife permit was obtained from the Ministers of Conservation and Energy. But, environmentalists remain concerned that the relocation plan may fail, leading to extinction of the Augustus species. [12] In July 2006 the appellant (which for convenience I shall term the Society) applied to the Environment Court for eight declarations and five enforcement orders which, if granted, would have required the cessation of mining in the Mt Augustus ridgeline area. The Society's application was heard before the Environment Court on 16-20 October 2006. Two main issues required determination. These were whether Solid Energy's mining activities pursuant to licence 37/150 were susceptible of challenge under the RMA. That is, did the Environment Court have jurisdictionto grant the declarations and enforcement orders which the Society sought. The second question was a factual one, whether the relevant mining activity was, or was likely to be, "noxious, dangerous, offensive, or objectionable to such an extent that it has or is likely to have an adverse effect on the environment": s17(3)(a) of the RMA. If so, the Environment Court could issue an enforcement order under Part 12 of the Act requiring that the adverse effects be avoided, remedied or mitigated. [13] Considerable evidence was adduced on both sides with reference to whether the mining activity gave rise to an adverse effect on the environment. The real issue was whether Solid Energy's translocation plan will in fact achieve protection of the Augustus species. The Society adduced scientific evidence to the effect that the plan may well fail with disastrous consequences for the Augustus species. [14] In its decision dated 14 December 2006 the Environment Court found at para [51] of its decision:It is our considered view that the destruction of a substantial portion of the habitat of the Powelliphanta "Augustus" in a situation which might possibly lead to extinction of that species is an action which is noxious, dangerous, offensive or objectionable to such an extent that it is likely to have an adverse effect on the environment.Having made that finding the Environment Court then considered the jurisdictional question and concluded that, despite the factual finding, it had no power under the RMA to intervene in relation to the mining activity. [15] The adverse factual finding is the subject of a cross appeal by Solid Energy. The company contends that such finding is blighted by errors of law on account of the way the Court approached the interpretation of s17 and through a failure to bring to account relevant considerations, being additional evidence provided by one witness on the initiative of the Court and the circumstance that Solid Energy's preservation plan is the subject of ministerial approval by permit. [16] In this court the jurisdictional question became the first focus of attention. Counsel agreed that, unless the Society succeeded with reference to jurisdiction, little point would be served by considering the cross appeal. I shall begin byconsidering whether mining activity at Mt Augustus is susceptible to the enforcement powers in the RMA.The key statutory provisions[17] In seeking declarations and enforcement orders the Society sought to invoke s17 of the RMA:Adverse effects17 Duty to avoid, remedy, or mitigate adverse effects(1) Every person has a duty to avoid, remedy, or mitigate any adverse effect on the environment arising from an activity carried on by or on behalf of that person, whether or not the activity is in accordance with a rule in a plan, a resource consent, a designation, section 10, section 10A, or section 20A. (2) The duty referred to in subsection (1) is not of itself enforceable against any person, and no person is liable to any other person for a breach of that duty. (3) Notwithstanding subsection (2), an enforcement order or abatement notice may be made or served under Part 12 to – (a) require a person to cease, or prohibit a person from commencing, anything that, in the opinion of the Environment Court or an enforcement officer, is or is likely to be noxious, dangerous, offensive, or objectionable to such an extent that it has or is likely to have an adverse effect on the environment; or (b) require a person to do something that, in the opinion of the Environment Court or an enforcement officer, is necessary in order to avoid, remedy, or mitigate any actual or likely adverse effect on the environment caused by, or on behalf of, that person. (4) Subsection (3) is subject to section 319(2) (which specifies when an Environment Court shall not make an enforcement order). (emphasis added)[18] With reference to the Crown Minerals Act 1991 the transitional provision is of direct relevance:107. Existing Privileges to continue - (1) Except as provided in this Part, every existing privilege shall continue to have effect after the date of commencement of this Act as if the Act which applied to the privilege before that date continued in force, and as if – (a) Subject to subsection (3), the holder of the privilege continued to have the same statutory rights as the holderwould have had if this Act and the Resource Management Act 1991 had not been enacted; and (b) Subject to subsection (3), the holder of the privilege continued to have the same statutory obligations as the holder would have had if this Act had not been enacted; and (c) Subject to section 108, every person having any function, power, or duty relating to the administration of the Act which applied to the privilege before that date continued to have those functions, powers, and duties; and (d) (e) (2) . (3) Where any consent in respect of any such existing privilege which, but for this section, would be required and would need to be sought under the Resource Management Act 1991, then the Resource Management Act 1991 shall apply. (4) . (emphasis added)[19] As can be seen the opening words of the section provide that existing privileges (including coal mining licences) continue to have effect as if their parent Act (here, the Coal Mines Act 1979) continued in force. This aspect of the section was emphasised by Solid Energy. [20] For the Society, however, a focus was placed upon the distinction between subsections (1)(a) and (b). Whereas privilege holders continue to have the samestatutory rights as if the Crown Minerals Act and the RMA had not been enacted,statutory obligations continue only as if the Crown Minerals Act had not been enacted. Seizing on this distinction, an argument was advanced to the effect that the statutory obligations attaching to Solid Energy's coal mining licence included obligations created under the RMA. Section 17 imposes an obligation to avoid adverse effects. Solid Energy was fixed with that obligation.Basis of the Environment Court decision[21] The essence of the jurisdictional decision is captured by reference to two paragraphs from the judgment:[82] Accordingly and for the various reasons which we have identified, we find that: • land use activities authorised by existing privileges (as defined in s106 Crown Minerals Act 1991) are controlled by the provisions of the relevant mining legislation in this case the Coal Mines Act 1979; • the relevant mining legislation constitutes an exclusive code in respect of those land use activities as identified in Stewart; • the Court has no jurisdiction to make declarations and enforcement orders in respect of land use activities authorised by existing privileges as those activities are governed by the relevant mining legislation and not RMA.Stewart is a reference to Stewart v Grey County Council [1978] 2 NZLR 577 (CA). [22] As to its conclusion that land use activities continue to be controlled under the Coal Mines Act, the Court earlier said this:[78] In our view the omission of any reference to RMA in s107(1)(b) Crown Minerals Act 1991 simply reflects the acknowledged position that the holder of a coal mining licence may have RMA obligations such as compliance with ss13, 14 and 15 as those provisions of RMA extend beyond the ambit of activities authorised by the coal mining licence. In so far as land use activities authorised by the coal mining licence are concerned however, such activities are not subject to RMA control. We say that because: • section 107(1) RMA specifically retains the statutory regime previously applicable to existing privileges, that statutory regime being an exclusive code as per Stewart; • if the land use activities authorised by coal mining licences are to be subject to resource management scrutiny pursuant to s17 that could effectively negate the rights which s107(1)(a) seeks to retain.[23] I note that the Court singled out land use activities as the particular restriction from Part 3 of the RMA which remained subject to the controls contained in the Coal Mines Act. [24] Counsel for the appellant advanced three arguments with reference to the issue of jurisdiction. The first was that on a plain reading of s107 of the Crown Minerals Act it was clear that the statutory obligations to which a privilege holder was subject were any statutory obligations, save only those under the Crown Minerals Act. Therefore, the statutory obligation imposed by s17 of the RMA to avoid adverse effects applied equally to Solid Energy's mining activities. TheEnvironment Court was wrong, counsel submitted, to construe s107 by reference toStewart v Grey County Council, and other extraneous materials, when the meaning of the section was plain on its face. [25] An ancilliary argument was to the effect that s107, as originally enacted in 1991, was amended in 1993 (with retrospective effect) and that a comparison of the original and amended sections provided support for the above construction of the section. Because of the interrelationship of these two aspects, I shall deal with them as argument one and under a single heading. [26] A second and alternative argument was advanced on the basis of s49 of the Coal Mines Act. In terms of that section coal mining licences are granted subject to such conditions as may be attached to them. Licence 37/150 is subject to condition A3(2)(d) that Solid Energy shall not "undertake blasting or other work on the licence area that would endanger wildlife". [27] Counsel argued that Solid Energy was demonstrably in breach of this condition, with the result that there was "no continuing right" to mine under the licence and, "in the absence of such a right" the mining activity was susceptible to the application of the RMA, including the enforcement powers under that Act. If this was not so, counsel contended that mining activity which breached the condition brought both the enforcement provisions of the Coal Mines Act and of the RMA into play.Argument one: Does s107(1)(b) have an obvious ordinary meaning?[28] To recap, s107(1) provided (in the circumstances of this case) that Solid Energy's coal mining licence 37/150 continued to have effect after 1991 as if the Coal Mines Act 1979 continued in force:and as if – (a) Subject to subsection (3), the holder of the privilege continued to have the same statutory rights as the holder would have had if this Act and the Resource Management Act 1991 had not been enacted; and(b) Subject to subsection (3), the holder of the privilege continued to have the same statutory obligations as the holder would have had if this Act had not been enacted; (emphasis added)[29] The defining concept in (b) is contained in the emphasised words, "statutory obligations". Can it be said that these words, in the context of s107, have an obvious natural meaning, such that the concept may be defined upon a plain reading basis? [30] In the first place it is noteworthy that both paras (a) and (b) are drafted in the past tense, so that Solid Energy as the holder of coal mining licence 37/150 "continued to have" the same statutory rights/obligations as it "would have had" if the Crown Minerals Act had not been enacted. This suggests that statutory obligations are to be defined on a backward looking basis. There is also the distinction between statutory obligations in para (b) and statutory rights in para (a). Why should the holder of a coal mining licence continue to have statutory rights unaffected by both Acts, but statutory obligations unaffected by the Crown Minerals Act but subject to the RMA? It is not immediately obvious. [31] Both para (a) and para (b) are expressed to be "subject to subs (3)" in that:Where any consent in respect of any such existing privilege which, but for this section, would be required and would need to be sought under the Resource Management Act 1991, then the Resource Management Act 1991 shall apply.The focus of this subsection is "any consent" which would be required under the RMA, but for s107, then the RMA still applies. Again, the purpose and meaning of this subsection is not, I think, immediately clear and obvious. [32] These considerations suggest that the interpretation of what I have termed the defining concept for the purposes of this case, "statutory obligations", is less than straight-forward. I am in no doubt that in order to understand s107, as a transitional provision, it is essential to place it in a wider context. That context includes the Mining Act 1971, the Coal Mines Act 1979 and the RMA.The Mining Act 1971[33] For present purposes it is sufficient to refer to the Court of Appeal decision inStewart v Grey County Council in order to appreciate the interrelationship between a mining licence and the then land use controls exercised by local authorities. Mr Stewart farmed land adjacent to the Taramakau River in Westland. A gold dredging company wished to mine part of the land and sought Mr Stewart's consent to the grant of a mining privilege. He did not agree. In due course, various statutory requirements having been met, the Governor General by Order in Council declared the land open for mining as if it were Crown land. Thereby the dredging company obtained a mining licence. By the time the licence was granted Mr Stewart had appeals pending to the then Town and Country Planning Appeal Board against various local authority decisions earlier obtained by the dredging company. The question was whether the Board had jurisdiction to hear the appeals. [34] After extensive reference to the scheme of the Mining Act Richardson J in delivering the judgment of the Court continued at 583-4: the Mining Act 1971 is special legislation governing the use of land for mining purposes. The Act provides a clear and detailed statutory code determining and controlling, under the direction of the Minister, the use and development of land for mining purposes. There are express provisions involving catchment authorities. . So far as land use is concerned, the scheme of the Act is that mining may and must be carried out in accordance with the provisions of the 1971 Act. There is no suggestion or implication that the use of land for mining purposes is also subject to other and possibly inconsistent controls imposed by territorial authorities. And it would be surprising if the Minister, having determined as he did in this case that it was in the national interest for land to be declared open for mining as if it were Crown land, and having then granted a mining licence, the town planning legislation could then be invoked to negate that decision. We are satisfied that that would be contrary to the purpose of the legislation. On our analysis, the Mining Act 1971 was intended to be an exclusive code in respect of the use of land for mining purposes under mining licences granted under that Act. Whatever the position as at the dates the Town and Country Planning Act 1953 and ss 28D and 38A were enacted (and it is not necessary to decide whether or not, applying the generalia specialibus non derogant principle, they would have been read subject to the Mining Act 1926), the 1971 Act must be taken to have pre-empted the field and not to be subject to the land use control provisions of the Town and Country Planning Act.[35] This statement of principle, although almost 30 years old and made against a different statutory backdrop, has provided the starting-point for any subsequentconsiderations of the relationship between mining legislation on the one hand, and legislation controlling land use on the other. Hence, in the present case the Environment Court referred at para [60] to "a long-standing line of authority on the applicability of planning legislation to the holders of mining licences" and referred toStewart as the genesis of that line of cases.The Coal Mines Act 1979[36] The long title to the Act is:An Act to consolidate and amend the law relating to coal prospecting and mining and to regulate the coal mining industry to ensure the proper and efficient development and use of New Zealand's coal resourcesSections 41-55 in Part III of the Act governed the grant of coal mining licences. [37] The Minister of Energy was empowered to issue licences, after regard was had to the extent of the particular coal resource, its best and most efficient utilisation, any special environmental factors and the general development and conservation of New Zealand's energy resources: s41(2). The term of a licence was the period specified therein, not being in excess of 40 years: s48(1). Pursuant to s49 general conditions attached to coal mining licences, including an obligation to pay rent for the land and royalties on the coal obtained. Before a licence was granted reports were to be obtained for the Commissioner of Crown Lands concerning the possible effect of the mining operation on the subject land and from the local catchment board as to whether the mining operation would conflict with the purposes of the Soil Conservation and Rivers Control Act 1941: s50. Further conditions relating to the prevention, or reduction, of damage to the land could be imposed pursuant to s51. [38] The rights conferred by a licence were defined in s55:Rights of holder of coal mining licence - (1) Subject to this Act, a coal mining licence shall authorise its holder and his agents and employees on his behalf to – (a) Work and mine for coal on or under the land in respect of which the licence was granted; and (b) Take and remove from or under the land all such coal and dispose of it; and(c) Do all acts and things that are necessary to effectually carry out coal mining operations on or under the land. (2) Subject to this Act, the holder of a coal mining licence shall – (a) Be entitled to use, occupy, and enjoy the land in respect of which the licence was granted for coal mining purposes; and (b) Be the owner of all coal lawfully mined from the land under the licence. (3) The rights conferred by this section shall be exclusive rights for coal mining purposes in relation to the land in respect of which the coal mining licence was granted.[39] I shall refer to the enforcement powers contained in the Act in the context of the Society's second argument. [40] To my mind the Coal Mines Act was likewise a code in relation to coal mining in New Zealand. All facets of the industry were the subject of regulation, including rights to mine, inspection and regulation of mines, competency of operators and the enforcement of obligations; although for present purposes the focus is upon the licensing system, in particular the rights secured to the holder of a mining licence. [41] With reference to licence 37/150 extensive conditions were applied to the licence. These comprised a mix of statutory conditions taken from the Fourth Schedule to the Act and unique conditions specific to the licence. I note that condition A7 under the heading "Water and Soil Protection" proscribed various activities, save where a water right or other authority was obtained under the Water and Soil Conservation Act 1967.Developments subsequent to the passing of the RMA[42] The transitional provisions contained in the Crown Minerals Act 1991, whereby pre-existing mining rights (whether under the Mining Act 1971, the Coal Mines Act 1979 or other legislation) are continued, have been the subject of judicial consideration, especially with regard to the impact of the RMA.[43] An early case was Opoutere Ratepayers and Residents Association (Inc) v Heritage Mining A33/95, 20 April 1995, a decision of the Planning Tribunal. The Ratepayers' Association sought a declaration as to the interpretation of s107 of the Crown Minerals Act, in particular whether the holder of a privilege under the Mining Act 1971, which had not been exercised before the RMA came into force, must comply with the land use requirements in s9 of the RMA. Judge Bollard began by referring to the Court of Appeal's decision in Stewart, noting at p 6 of the decision:Following Stewart, the general position in practice was that, while the holder of a prospecting or mining licence did not need to obtain any land use consent under the Town and Country Planning Act 1977, where the licence required that other consents be obtained, such as water rights under the Water and Soil Conservation Act 1967 or a licence under the Clean Air Act 1972, then the licensee made application accordingly to the appropriate water board or controlling authority.[44] Then after examination of s107, as amended in 1993, the Judge continued at p 9-10:When one looks at Part IV of the Crown Minerals Act as a whole (including the provisions just discussed), the view that the substituted s.107 was designed to clarify rather than introduce a basic change in direction gathers attraction. Obviously, s.107(3) is not worded as elegantly as one would wish. But when approached in context as part of the transitional framework embraced in Part IV, the intention and meaning becomes tolerably clear. In our opinion, the purpose of subs (3), read in conjunction with subs (1), (in particular paragraphs (a) and (b)), is to ensure that existing privilege holders' statutory rights under the previous Mining Act legislation are preserved. Where for past purposes such privilege holders' licences stipulated that consents were to be obtained under legislation such as the Water and Soil Conservation Act 1967 or the Clean Air Act 1972, those consents are now to be sought and obtained under the Resource Management Act (eg when the term of a water right, formerly granted under the 1967 Act, is due to expire).A few lines later:Clearly, as recognised in Stewart, the holder of such a privilege did not need to obtain land use consent under the Town and Country Planning legislation; and, in turn, such a holder does not need to obtain such consent under the Resource Management Act.[45] It is interesting to note that the then Minister of Energy, the Honourable Douglas Kidd, speaking in the House on 12 September 1995 in relation to a further amendment to the Crown Minerals Act said this:In the case of existing privileges granted under the Mining Act and the Coal Mines Act, these rights have always included the right to use land for mining activities. Thus an additional resource consent for land use is not required for those privileges.The Minister then referred to the previous 1993 amendment to the Act, which in some quarters had prompted the belief that privilege holders may need to obtain a land use consent under the RMA, and he continued:I am happy to inform the House that the Planning Tribunal has given its decision in the Opoutere Ratepayers and Residents Association (Inc) v Heritage Mining planning appeal case. The decision of the Planning Tribunal was to confirm the government's view of the legislation. Therefore I am able to assure members that the provisions in the Bill accord entirely with the view of the Planning Tribunal as to what the law meant.Hence, a further change to s107 was not considered necessary and the focus of the amending Bill remained elsewhere. [46] Next is the Environment Court decision in Otago Heritage Protection Group Incorporated v Macraes Mining Company Limited Environment Court C36/98, 9 April 1998, in which the applicant sought an enforcement order under s314 of the RMA against Macraes to restrain the company from mining an area containing old mine workings considered to have heritage value. Macraes held a mining licence under the Mining Act 1971. Judge Jackson concluded at para [14] of his decision: I have no jurisdiction to make an enforcement order as sought against Macraes in respect of the mining licence land. Sections 107 and 108 of the [Crown Minerals Act] are a complete bar to such a proceeding.It seems to me this decision is directly in point. [47] Finally, in Terry v West Coast Regional Council Environment Court C147/2001, 29 August 2001 Judge Smith likewise held that the applicants could not obtain an enforcement order relating to gold mining activity undertaken pursuant to a mining licence under the Mining Act 1971. He followed the approach foreshadowed in Stewart and reaffirmed in the Otago Heritage case.An amendment to s107 in 1993[48] It was argued for the Society that the amendments to s107 two years after it was originally passed lent weight to the argument for the Society. [49] Counsel closely compared the terms of the original s107 and the amended version. It is the case that the structure of subs (1) was materially altered, but there was no change to paras (a) and (b). That is, statutory rights were expressed to continue as if both the 1991 Acts had not been enacted, whereas statutory obligations continued only as if the Crown Minerals Act had not been enacted. [50] In my view the intent of the amendment was to make it clear that, although the holders of existing mining privileges were not subject to the RMA in relation to land use requirements, this did not extend to ancilliary requirements of the kind recognised in Stewart and the Opoutere case, for example the need to obtain water and clean air entitlements. To that end a new subsection (3) was introduced:Where any consent in respect of any such existing privilege which, but for this section, would be required and would need to be sought under the Resource Management Act 1991, then the Resource Management Act 1991 shall apply.Thereby the amendment clarified and put beyond doubt that ancilliary authorities were, post 1991, to be obtained under the RMA. Accordingly, I am unpersuaded that the 1993 amendments to s107 assist the Society's argument.But why should s17 not apply to a mining licence?[51] This proposition remained at the heart of Mr Davies' argument. From s107(1)(b) of the Crown Minerals Act he went direct to s17 of the RMA. Because the former provides that the holder of a mining licence continues to have the same statutory obligations as if only the Crown Minerals Act had not been passed, he submitted that the s17 obligation applied to Solid Energy in relation to its mining activity on Mt Augustus. Hence, counsel saw no need to confront some of the broader issues, including in particular the thinking based on Stewart v Grey County Council. The case was approached as one involving a straight question of statutoryinterpretation, to which the answer was clear from a consideration of s107(1) and s17. [52] Mr Rennie disputed this approach and argued that it involved a misunderstanding of the purpose of s17, when that section was construed in the context of the RMA as a whole. He submitted that s17 was in the nature of "a catch- all provision intended as a general safeguard to go hand-in-hand with the other obligations under Part 3" of the Act. This submission was developed with particular reference to the Kaimanawa Wild Horse Preservation Society Incorporated v Attorney-General (1997) NZRMA 356 (EC), which case I shall discuss shortly. Further, said Mr Rennie, to fix Solid Energy's mining licence with the obligation contained in s17(1) had the potential to render s107(1)(a) nugatory, in that the mining licence would be rendered of no practical utility to its holder, at least if the approach for which the Society contended was adopted. [53] I begin with s17 itself. The terms of the provision are instructive. Subsection (1) creates the duty to avoid, remedy or mitigate adverse effects. Such duty applies whether or not the activity is one authorised by a rule, a resource consent, a designation, an existing use entitlement or a rule in a proposed plan. But, pursuant to subs (2) the duty is not "of itself enforceable", and nor may the person creating the adverse effect be liable to another for a breach of the duty. Notwithstanding the protection given by subs (2), an enforcement order or abatement notice under Part 12 of the Act may be issued to secure a cessation of the offending activity, or to require steps to be taken to address the adverse effects. However, the making of an enforcement order or abatement notice is subject to s319(2). [54] That section governs decisions on applications for an enforcement order. Subsection (2) provides:Except as provided in subsection (3), the Environment Court must not make an enforcement order under section 314(1)(a)(ii), b(ii), (c), (d)(iv), or (da) against a person if - (a) that person is acting in accordance with - (i) a rule in a plan; or (ii) a resource consent; or (iii) a designation; and(b) the adverse effects in respect of which the order is sought were expressly recognised by the person who approved the plan, or granted the resource consent, or approved the designation, at the time of the approval or granting, as the case may be.[55] It seems to me that reading s17 both in its immediate context and in the context of Part 12 of the Act, serves to confirm that the duty which it imposes is peculiar to the RMA context. Take, for example, s319(2) whereby enforcement action is proscribed if an activity is authorised under the Act and the relevant adverse effects were expressly recognised by the decision-maker who granted such authorisation. Here Solid Energy's mining licence was granted only after the decision-maker had considered adverse effects and imposed certain conditions to that end. Moreover, the very issue of the safeguarding of Powelliphanta Augustus snails was subsequently the subject-matter of a management plan approved by the requisite Ministers under the Wildlife Act (see [10] and [11]). Yet, if the Society's argument is correct, Solid Energy is fixed with the s17 duty and is unable to avail itself of the protection provided by s319(2), because its licence and permit were granted in regimes outside the RMA. [56] The proper intended ambit of s17 occupied Judge Sheppard in theKaimanawa case. The plaintiff Society sought a declaration that the proposed culling of wild horses in the Kaimanawa Ranges was in breach of s17 of the RMA. The Attorney-General applied to strike out the application for declaratory relief. There were parallels with the present case. The horses were protected under the Wildlife Act. The Minister of Conservation had approved and issued a management plan under that Act with reference to the control of the horses. Nonetheless, the Society, which was opposed to any culling, sought to invoke the RMA. [57] Judge Sheppard in a closely reasoned decision concluded that s17, despite the breadth of its terms, did not apply to the proposed activity of mustering and culling the wild horse herd. He found that the scope of the RMA was the regulation and control of land, air and water. Although the wording of s17(1), taken at face value, was well capable of extending to the regulation and control of any activity having an adverse effect on the environment, this was to read the section too broadly. The Judge did not regard the mustering and culling activity to be a use of the landcontrolled by s9, nor otherwise regulated in terms of the controlling sections in Part III of the Act. His conclusion was expressed in these terms:I have considered the interpretation to be given to s 17(1) according to the purpose of the Act, according to its context in Part III of the Act, and by reference to New Zealand's international obligations under the Convention on Biological Diversity. I hold that the broad meaning of the words of the subsection would give effect to the express purpose of the Act. However I hold that when the subsection is read in its context in Part III of the Act, there is an implied restriction in its scope, so that it applies only to activities of the kinds controlled by the other provisions of Part III. I also hold that my understanding of the true meaning of s 17(1) is not to be influenced by the international obligations undertaken by the Crown in ratifying the Convention on Biological Diversity. (emphasis added)[58] Then following an observation that the Society's application could not possibly succeed and the Judge continued:I understood the society to be claiming that as their case alleges that the proposed acts would have adverse effects on the environment, it is a case for the Environment Court. That claim is too broad. Parliament has not conferred on the Environment Court general authority over all acts which would or might have adverse effects on the environment. The law does not provide for appeals to the Environment Court about the contents or implementation of management plans under the Wildlife Act. The jurisdiction given to the Court has been carefully defined. I have concluded that the society's claims do not come within that jurisdiction, and that the Environment Court is not able to entertain them. That does not preclude the society having recourse to some other forum.[59] The present case is of course distinguishable. Solid Energy's mining of the Mt Augustus area plainly constitutes a land use activity (although one authorised by a coal-mining licence rather than a resource consent). Any adverse impact upon the snails is an effect arising from that activity. Hence, unlike the Kaimanawa case, the intended activity pertains to land use and is not an activity confined to a wildlife species. [60] But, by extension, is the reasoning in Kaimanawa equally applicable to the present circumstances? Judge Sheppard held that s17(1) must be read subject to an "implied restriction" as to its ambit so that it applied only to activities of the kind controlled under Part III of the RMA. Similarly, should the subsection be read subject to an implied restriction in relation to activities not in fact susceptible of control under the RMA?[61] I think the answer to that question is yes. I accept the first respondent's contention that s17(1) creates an overarching duty imposed upon persons involved in an activity which causes adverse effects on the environment, regardless whether that activity is authorised under the RMA. But, with reference to the enforceability of that duty, by definition it is unenforceable save where enforcement is permitted in terms of Part 12 of the Act. It follows, I think, that s17 casts a duty within the context of the RMA. Where an activity is not regulated and controlled under the RMA, s17 has no part to play. [62] Returning then to Mr Davies' argument, I agree that as a matter of statutory construction s107(1)(b) of the Crown Minerals Act does not on its terms exclude the holder of a coal mining licence from the s17 duty. But, on further examination s17, read in context and for the above reasons, cannot apply to a coal mining activity regulated under the Coal Mines and Wildlife Acts, and not the RMA. [63] For these reasons I reject argument one.Argument Two - Does a breach of the coal mining licence bring the RMA enforcement powers into play?[64] The Environment Court did not make a finding that Solid Energy was in breach of condition A3(2)(d) of its licence. That condition relevantly provides:(2) The licensee shall not – (d) undertake any blasting or other work on the licence area in a manner which would endanger the public, livestock, or wildlife.I shall assume, without deciding, that the adverse effect finding under s17 of the RMA provides a sufficient foundation to suppose that a breach of this licence condition is also established. [65] The gist of the argument was that in consequence of the breach there was "no continuing right" to mine under the licence. And, "in the absence of such a right" Solid Energy was said to be subject to the RMA, including the enforcement powers under the Act.[66] I am unable to accept this thesis. In the first place the argument takes no account of s107(1)(c) of the Crown Minerals Act. It provides:Subject to section 108, every person having any function, power, or duty relating to the administration of the Act which applied to the privilege before that date continued to have those functions, powers, and duties;[67] In addition, s108 under the heading "Administration of existing privileges" provides detailed provisions concerning the functions, powers and duties of the Minister of Energy, consent authorities and others, with reference to the administration of existing privileges, including if there is doubt as to who carries an ongoing responsibility, a right to have the Environment Court determine that issue (s108(2)). It follows, in my view, that the terms of s107 and 108 contradict the present argument. [68] Similarly, the terms of the Coal Mines Act are inconsistent with the argument. Section 76 of that Act provides for the forfeiture of a coal mining right (which includes a licence). One ground of forfeiture is where there has been non- compliance with a notice pursuant to s75 seeking compliance with a condition of the licence. Section 77 confers a right of appeal against forfeiture. [69] These sections, then, expressly spell out the consequences which may flow from the breach of a licence condition. A breach does not imperil the right, save through the process of forfeiture. And, the enforcement powers under the RMA are not imported. [70] In my view this argument is not tenable.Disposition of the appeal[71] For these reasons I agree with the Environment Court that it had no jurisdiction to grant the relief sought by the Society. [72] I do not propose to consider the cross-appeal directed to the finding that Solid Energy was in breach of s17. No useful purpose would be served by my doing so.And, in any event, as counsel noted, the s17 finding was strictly obiter given the Environment Court's conclusion that it lacked jurisdiction. [73] Costs are reserved. If sought, and in the absence of agreement, memoranda may be filed. The respondents shall have 15 working days from the date of this judgment to do so, with the appellant have 10 working days within which to reply.____________________________________________________________________Solicitors: Gascoigne Wicks, Blenheim for Appellant Anderson Lloyd, Christchurch for First Respondent Duncan Cotterill, Christchurch for Second and Third Respondents