RANGITIRA DEVELOPMENTS LIMITED v ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED [2019] NZSC 81

RANGITIRA DEVELOPMENTS LIMITED v ROYAL FOREST AND BIRD PROTECTION SOCIETY OFNEW ZEALAND INCORPORATED [2019] NZSC 81 [26 July 2019]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 105/2018[2019] NZSC 81BETWEEN RANGITIRA DEVELOPMENTS LIMITEDAppellantAND ROYAL FOREST AND BIRDPROTECTION SOCIETY OF NEWZEALAND INCORPORATEDRespondentHearing: 8 July 2019Court: Winkelmann CJ, Glazebrook, O'Regan, Ellen France andWilliams JJCounsel: J E Hodder QC, M R G Christensen and J K Grimmer forAppellantM C Smith, P D Anderson and S R Gepp for RespondentJudgment: 26 July 2019JUDGMENT OF THE COURTA Leave to appeal is revoked.B Costs of $6,000 plus usual disbursements are awarded to therespondent.C Leave is reserved to apply again for leave to appeal if theproposed appeal is no longer moot.____________________________________________________________________REASONS(Given by Glazebrook J)[1] On 20 February 2019, this Court granted leave to appeal1 to the appellant(Rangitira) to appeal against the judgment of the Court of Appeal in RangitiraDevelopments Ltd v Royal Forest and Bird Protection Society of New Zealand Inc.2The approved question was whether the Court of Appeal erred in setting aside thedeclarations made at [86] of the judgment of the High Court.3[2] It now appears that the agreed statement of facts presented in the High Courtmay have contained a significant error. The question dealt with in this judgment iswhether this means that leave to appeal should be revoked.Background[3] Rangitira wishes to develop and operate an open cast coal mine in forested landnear Westport. It has a mining permit for the project, which would involve theexcavation of 116 hectares, nine kilometres of access road and 3.28 hectares forout-of-pit water treatment infrastructure. Of the 116 hectares it proposes to excavate,104 hectares are on reserve land administered by the Buller District Council(the Council).[4] Rangitira applied under s 60 of the Crown Minerals Act 1991 for an accessarrangement with the Council to allow the development of the mine on the reserveland.4 It then applied to the High Court for various declarations about the role of s 23of the Reserves Act 1977 and its relationship with s 60 of the Crown MineralsAct 1991.1 Rangitira Developments Ltd v Royal Forest and Bird Protection Society of New Zealand Inc[2019] NZSC 6 (William Young, O'Regan and Ellen France JJ).2 Royal Forest and Bird Protection Society of New Zealand Inc v Rangitira Developments Ltd[2018] NZCA 445, [2019] NZRMA 233 (Asher, Brown and Clifford JJ) [Rangitira (CA)].3 Rangitira Developments Ltd v Royal Forest and Bird Protection Society Ltd [2018] NZHC 146,(2018) 20 ELRNZ 312 (Nation J) [Rangitira (HC)].4 Rangitira has also applied for a number of consents under the Resource Management Act 1991:see Rangitira (CA), above n 2, at [10].[5] In summary, the High Court held that:5(a) The Council should have regard to the Reserves Act and in particulars 23 of that Act as relevant considerations under s 60(2) of the CrownMinerals Act.(b) The Council can, in its exercise of discretion under s 60(2) of the CrownMinerals Act weigh the matters set out in s 23 against other factors suchas:(i) the economic benefits of the proposal to its district; or(ii) the enhancement of other natural areas (outside the applicationarea and outside the reserve) by Rangitira which may form partof Rangitira's proposals.(c) The Council is not required to make its decision under s 60 of theCrown Minerals Act in accordance with s 23 of the Reserves Act.While it may have regard to matters referred to in s 23, it is not requiredto give effect to them.[6] The Court of Appeal set aside the declarations made in the High Court. It heldthat the Council, when considering whether to grant an access arrangement unders 60(2) of the Crown Minerals Act, was required to give effect to s 23 of theReserves Act and that the requirements of s 23 are not to be balanced against otherfactors not relevant to the protection of the reserve (such as any economic benefits ofthe mining project).65 Rangitira (HC), above n 3, at [86].6 Rangitira (CA), above n 2, at [78].Agreed statement of facts[7] The proceedings in the High Court proceeded on the basis of an agreedstatement of facts. This statement said that the reserve at issue is a Local Purpose(Water Conservation) Reserve:The proposed 116 ha mine footprint is located over two different landparcels/tenures: public conservation land administered by the Department ofConservation ("DoC") as Stewardship land under the ConservationAct 1986[7] and land managed by the Council under the Reserves Act 1977 asLocal Purpose (Water Conservation) Reserve. The proposed access road islocated on both public and private land. The proposed coal load-out facilityis situated on private land.[8] As we understand the position, the reserve in question was set aside in 1951for water conservation and vested in the Council. This was done under s 167 of theLand Act 1948 and s 9 of the Public Reserves, Domains and National Parks Act 1928.In terms of the 1928 Act, the reserve became a "public reserve".8[9] Section 16(1) of the Reserves Act 1977 provides that the Minister shall, bynotice in the Gazette, classify all reserves (whether existing before or after thecommencement of the Act) according to their principal or primary purpose, as definedin ss 17 to 23.9 Section 23 relates to local purpose reserves.[10] In the course of preparing for the hearing of the appeal (at that stage scheduledfor hearing on 7 May 2019), Mr Hodder QC discovered that the reserve in issue didnot appear to have been classified. By memorandum of 1 May 2019, he informed the7 Rangitira made a separate access application with regard to this conservation land: seeRangitira (CA), above n 2, at [11].8 As broadly defined in s 2 of the 1928 Act. The 1928 Act definition included land that was a "publicreserve" within the meaning of the Public Reserves and Domains Act 1908 (again, defined in s 2)and the 1908 definition adds to the definition in the Public Reserves Act 1881 (again, defined ins 2). A similar, albeit wider, definition of "public reserve" followed the 1928 Act in s 2(1) of theReserves and Domains Act 1953. The 1953 Act was replaced by the Reserves Act 1977, which isstill in force. Again, "reserve or public reserve" is defined in s 2(1). Critically, in both the 1953and 1977 Acts, "public reserve" or "reserve" includes land set apart under Part 12 of the Land Act1948 (which includes s 167) but does not include any land to which s 167(4) of the Land Act 1948applies, that is where Crown land was set aside for public works: para (l) of the definition of"public reserve" in the 1953 Act; and para (k) of the definition of "reserve or public reserve" inthe 1977 Act.9 We note that the Minister can delegate all powers, except for the power to approve bylaws:Reserves Act 1977, s 10(1). Section 16(2A) also provides for the situation where any reserve wasvested in a local authority which did not derive its title to the land from the Crown – the localauthority shall, by resolution, classify it according to the reserve's principle or primary purpose asdefined in ss 17 to 23.Court of this.10 Mr Hodder in that memorandum suggested that s 16(6) of the ReservesAct means that:(a) the reserve is properly understood as being managed by the Council forthe purposes of its original reservation (under the 1951 Orders inCouncil); and(b) management involves the "appropriate" provisions of the Reserves Act.In his submission, this means only the generic provisions of the Act,which are not premised on classification (for example, ss 27 and 79).[11] After a telephone conference with the parties, by minute of 3 May 2019, thehearing of the appeal was adjourned and submissions were sought from counsel on thefactual and legal implications of Rangitira's position that the reserve has not beenclassified as a "local purpose reserve", including whether the Court should hear theappeal or revoke leave. After receipt of those submissions, a hearing on this issue wasconvened.Parties' submissions[12] On behalf of Rangitira, it is submitted that:(a) The principal issues addressed in the appeal (involving the interplay ofs 60 of the Crown Minerals Act 1991, and ss 23 and 109 of the ReservesAct) remain of general and public importance.(b) These issues may well remain of specific significance for the relevantreserve, given that (i) there is some uncertainty on whether or not thereserve has been classified; (ii) there is room for argument about whichprovisions of the Reserves Act apply to unclassified reserves; and (iii) ifunclassified, the reserve may later be classified.10 As he was obliged to do.[13] On behalf of the respondent (Forest and Bird), it is submitted that Rangitirashould not be able to argue the appeal on a hypothetical basis: ie that the reserve issubject to s 23 of the Reserves Act, a hypothesis that Rangitira says is not correct.Forest and Bird, do, however, maintain that the basis on which the case has proceededto date is correct and, even if wrong about this, it is too late for Rangitira to change itsposition.Our assessment[14] We accept that the issue of the relationship between s 23 of the Reserves Actand s 60(2) of the Crown Minerals Act is a matter of general or public importance. Ifit had not been, then we would not have granted Rangitira's application for leave toappeal.[15] We also accept that the appeal would not be moot if:(a) it is later found that the reserve had in fact been classified;(b) the reserve is later classified;(c) it is found that s 23 applies to non-classified reserves, as Forest andBird maintain (but contrary to Rangitira's view); or(d) Rangitira is held to be unable to resile from the position in the agreedstatement of facts.[16] The scenarios in (a) and (b) have not yet occurred. We do not know if (c) and(d) apply and these issues would not be before us in the appeal. This means that theappeal is currently moot. We also accept Forest and Bird's submission that the appeal,if it were to go ahead, would be argued on a hypothetical basis: that the reserve hasbeen classified when in fact it likely has not been. Further, it appears that, if the appealwere to go ahead and Rangitira did not succeed in overturning the Court of Appealdecision, it would argue before the Council in the access application that s 23 has noapplication to non-classified reserves. The appeal therefore would not resolve mattersbetween the parties.[17] Taking all the above factors into account, we consider that leave should berevoked.11 Leave is, however, reserved for Rangitira to apply again for leave to appealagainst the Court of Appeal's decision should any of the scenarios listed in [15] occur.If that were the case, the appeal would no longer be moot.Result[18] The grant of leave is revoked.[19] Costs of $6,000 plus usual disbursements are awarded to Forest and Bird, inrelation to this hearing on whether leave should be revoked.[20] Forest and Bird has also asked for costs for the steps taken by it in the appealbefore its adjournment. As the mistake as to classification (if indeed it was a mistake)was mutual, we consider these costs should lie where they fall.[21] Leave is reserved to Rangitira to apply again for leave to appeal if the proposedappeal is no longer moot.Solicitors:Natural Resources Law Limited, Christchurch for AppellantGilbert Walker, Auckland for Respondent11 Senior Courts Act 2016, s 74.