ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED v RANGITIRA DEVELOPMENTS LIMITED [2018] NZCA 445

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED vRANGITIRA DEVELOPMENTS LIMITED [2018] NZCA 445 [23 October 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA126/2018[2018] NZCA 445BETWEEN ROYAL FOREST AND BIRDPROTECTION SOCIETY OF NEWZEALAND INCORPORATEDAppellantAND RANGITIRA DEVELOPMENTS LIMITEDRespondentHearing: 9 August 2018 (further submissions received 15 August 2018)Court: Asher, Brown and Clifford JJCounsel: M C Smith and P D Anderson for AppellantM R G Christensen and E M Gattey for RespondentJudgment: 23 October 2018 at 3 pmJUDGMENT OF THE COURTA The appeal is allowed.B The declarations and orders made by the High Court are quashed.C The questions of law on the first issue are answered as set out in [78].D We make no declarations on the second issue.E The respondent must pay the appellant costs for a standard appeal on aband A basis and usual disbursements. We certify for two counsel.F If any order was made as to costs in the High Court, that order is quashed.G Costs in the High Court are to be determined by that Court in the light ofthis judgment.____________________________________________________________________REASONS OF THE COURT(Given by Asher J)Table of ContentsPara NoIntroductionBackgroundHistory of the proceedingsThe first issue — must the Council's decision under s 60 bemade in accordance with s 23?The issueThe legislative history up to 1991Legislative change to the mining regimeAnalysisThe order creating the reserve and s 5(2)(a)Other sectionsImplied repealSection 61Section 109Conclusion on the first questionThe second issue — what is meant by ss 23(2)(a) and (b) of theReserves Act?ResultCosts[1][5][14][19][19][28][42][46][52][57][60][61][64][70][73][76][80]Introduction[1] The respondent, Rangitira Developments Ltd (Rangitira),1 wishes to developand operate an open cast coal mine in forested hill land near Westport. It has a miningpermit for the project covering approximately 884 ha of land. The proposed mine hasa footprint of 116 ha, with an additional nine km of access road and 3.28 ha forout-of-pit water treatment infrastructure.[2] Of the 116 ha to be excavated, approximately 104 ha are on reserve landadministered by the Buller District Council (the Council). In order to proceedRangitira needs a range of consents, permissions and arrangements, including anaccess arrangement with the Council permitting it to develop the mine in large part onthe reserve, and it has applied to the Council for such access. The appellant,1 We note that "Rangitira" appears to be a misspelling of the word "Rangatira" in Te Reo Māori.However, we use "Rangitira" given that it is the company's registered name and the name usedthroughout in the proceedings.Royal Forest and Bird Protection Society of New Zealand Inc (the Society), opposesthe development and the granting of access.[3] This appeal concerns a decision made in the High Court at Christchurch byNation J in which he made a number of declarations which accorded with thesubmissions of Rangitira.2 The appeal is brought by the Society to challenge thatdecision and to seek alternative declarations that would place greater constraints onthe Council when making its decision on access. At the heart of the case is theinterpretation of two Acts, the Reserves Act 1977, which provides for the creation ofpublic reserves and their maintenance and preservation, and the CrownMinerals Act 1991, which provides for the prospecting and exploration for mining ofCrown-owned minerals.[4] The parties filed an agreed statement of facts in the High Court, and the factsare also summarised in the High Court judgment. We will briefly summarise thebackground.Background[5] The land in question was reserved on 10 August 1951.3 The reserve was vestedin the predecessor to the current Council "in trust, for water-conservation purposes"on 31 October 1951.4 The area of the reserve is considerably more extensive than thatwhich would be the subject of the proposed mine and was described in October 1951as covering 4,510 acres. As we have stated, 104 ha of the proposed 116 ha minefootprint would be on the reserve. A small part of the mine footprint would be on landowned by the Crown and administered by the Department of Conservation asstewardship land under the Conservation Act 1987. The mine would be 12 km fromWestport.[6] The part of the reserve which will be affected by the mine is covered invegetation. It has extensive areas of intact low forest in which pink and yellow silver2 Rangitira Developments Ltd v Royal Forest and Bird Protection Society Ltd [2018] NZHC 146,[2018] NZRMA 241.3 "Land Reserved in Nelson Land District" (16 August 1951) 67 New Zealand Gazette 1185.4 "Vesting a Reserve in the Westport Borough Council" (1 November 1951) 84 New ZealandGazette 1640.pine are important components. Twenty-three species of indigenous birds areidentified in the mining permit area, two of which are threatened (the great spottedkiwi and the New Zealand falcon) and five of which are described as "at risk". Thereare at risk lizard species. The agreed statement of facts records that ecological adviceprovided to Rangitira was that the reserve includes indigenous vegetation and habitatof indigenous fauna which are significant in terms of s 6(c) of theResource Management Act 1991.[7] The proposed mine site and wider mining permit area is on ranges that have ahigh degree of natural character. The backdrop ranges are described as having highaesthetic value. There is little evidence of human influence in the area save for onesmall hut and some evidence of exploratory drilling. The landscape advice providedto Rangitira as part of its application for resource consent was that the mine site has avery high natural character and is part of a mountain range that is high in visualamenity value. The ranges can be seen from Westport.[8] The proposed mine area is part of a large coal resource. The types of coal thatare present have properties that make them high value commodities which attractpremium prices. The mine is expected to produce about four million tonnes of coalover its estimated 16-year mine life. Rangitira expects the mining operation to provideemployment on site and in Westport for 58 full-time equivalent staff.[9] The proposed mine is open cast and will remove approximately 104 ha ofsurface cover from within the reserve. Both Rangitira and the Society agree thatwithout mitigation measures the proposal would result in significant adverse effects.The parties also agree that a mine would have positive social and economic benefits,although they disagree as to their extent.[10] Rangitira requires various consents or permissions to proceed with the mineincluding multiple resource consents. It made a number of applications to the Councilfor resource consents on 29 August 2016. The Council appointedIndependent Commissioners to consider those applications. On 21 November 2017the Commissioners released their decision. They granted the consents subject toextensive conditions. That decision was then appealed to the Environment Court byvarious parties, including the Society. That appeal is currently adjourned pending thedetermination of other proceedings.[11] Rangitira also required an access arrangement in relation to the conservationland, which is a small part of the proposed mine site. In an application that is entirelyseparate from the application that is the subject of this appeal, it applied to theMinister of Conservation and Minister of Energy and Resources for an accessarrangement over that conservation land. On 16 June 2018 the Ministers declinedRangitira's access request in relation to that conservation land. Rangitira has said itintends to apply for judicial review of that decision.[12] The crucial application for the purposes of this appeal is Rangitira's applicationto the Council as the body in which the reserve is vested, for an access arrangementover the 104 ha of reserve land and ancillary land vested on trust in the Council andwhich the Council administers. That application, made under theCrown Minerals Act, was filed on 25 March 2015. In broad terms, Rangitira soughtan arrangement permitting it to enter and use the relevant part of the reserve for anopen cast coal mine and an access road.[13] At a general meeting on 28 September 2016 the Council resolved to enter intoan access arrangement with Rangitira. The agreement was to include appropriateconditions to ensure there were no impacts on the Westport water supply and thatanything highlighted by the resource consent process would be addressed.This decision followed a submission process conducted by the Council. The Societyhad lodged a written submission opposing Rangitira's application. On13 February 2017 the Society lodged an application under the Judicature AmendmentAct 1972 for judicial review of the Council's decision to grant access.History of the proceedings[14] Following the Society's filing of the application for judicial review, on12 April 2017 the Council rescinded its earlier decision of 28 September 2016granting access and Rangitira filed these proceedings under the DeclaratoryJudgments Act 1908 seeking declarations to resolve issues of law that had arisen.[15] Broadly it can be said that declarations were sought in relation to two issues.The first issue was whether the Council was bound to make its decision in accordancewith s 23 of the Reserves Act, or whether in fact s 23 was only a factor to be taken intoaccount when making a decision under s 60(2) of the Crown Minerals Act, andwhether the Council's decision under s 60(2) could involve the weighing of otherfactors such as economic benefits to the region. This involves the interpretation ofs 23 of the Reserves Act and s 60(2) of the Crown Minerals Act.[16] The second broad issue involved a number of detailed questions as to how s 23of the Reserves Act was to be interpreted and applied, in particular whether it requiredabsolute protection of each feature of the reserve, or a balancing of the impact of theworks on certain features against enhancement and mitigation measures throughoutthe broader reserve. There were further overlapping specific questions, includingwhether damage within the reserve could be balanced against mitigation andenhancement outside the reserve. For reasons that we set out later in this judgment, itis not necessary for us to determine this second broad issue.[17] The case was argued before Nation J who delivered the decision that is thesubject of this appeal on 14 February 2018.[18] We consider now the first broad issue.The first issue — must the Council's decision under s 60(2) be made in accordancewith s 23?The issue[19] In its statement of claim Rangitira sought declarations as to the role of s 23 ofthe Reserves Act in decisions made by administering bodies of reserves under s 60 ofthe Crown Minerals Act. It posed the following questions of law:In considering the application by Rangitira over the reserve vested inthe Council:(a) Is the Council required to have regard to the Reserves Act and inparticular s 23 of that Act?(b) If so, can the Council in the exercise of its discretion under s 60(2) ofthe Crown Minerals Act weigh the matters set out in s 23 against otherfactors such as:(i) the economic benefits of the mining project 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) Alternatively, is the Council required to make its decision under s 60 ofthe Crown Minerals Act in accordance with s 23 of the Reserves Act?[20] Section 60 of the Crown Minerals Act provides:60 Grant of right of access by access arrangement(1) An access arrangement in relation to land may make provision for orwith respect to the following matters:(a) the periods during which the permit holder is to be permittedaccess to the land:(b) the parts of the land on or in which the permit holder mayexplore, prospect, or mine and the means by which the permitholder may gain access to those parts of the land:(c) the kinds of prospecting, exploration, or mining operationsthat may be carried out on or in the land:(d) the conditions to be observed by the permit holder inprospecting, exploring, or mining on or in the land:(e) the things which the permit holder needs to do in order toprotect the environment while having access to the land andprospecting, exploring, or mining on or in the land:(f) the compensation to be paid to any owner or occupier of theland as a consequence of the permit holder prospecting,exploring, or mining on or in the land:(g) the manner of resolving any dispute arising in connection withthe arrangement:(h) the manner of varying the arrangement:(i) such other matters as the parties to the arrangement may agreeto include in the arrangement.(2) In considering whether to agree to an access arrangement, an owneror occupier of land (other than Crown land) may have regard to suchmatters as he or she considers relevant.[21] Section 23(1)–(2) of the Reserves Act provides:23 Local purpose reserves(1) It is hereby declared that the appropriate provisions of this Act shallhave effect, in relation to reserves classified as local purpose reservesfor the purpose of providing and retaining areas for such local purposeor purposes as are specified in any classification of the reserve.(2) It is hereby further declared that, having regard to the specific localpurpose for which the reserve has been classified, every local purposereserve shall be so administered and maintained under the appropriateprovisions of this Act that—(a) where scenic, historic, archaeological, biological, or naturalfeatures are present on the reserve, those features shall bemanaged and protected to the extent compatible with theprincipal or primary purpose of the reserve:provided that nothing in this paragraph shall authorise thedoing of anything with respect to fauna that would contraveneany provision of the Wildlife Act 1953 or any regulations orProclamation or notification under that Act, or the doing ofanything with respect to archaeological features in anyreserve that would contravene any provision of theHeritage New Zealand Pouhere Taonga Act 2014:provided also that nothing in this paragraph shall authorise thedoing of anything with respect to any esplanade reservecreated under section 167 of the Land Act 1948, orsection 190(3) or Part 25 of the Municipal Corporations Act1954 or Part 2 of the Counties Amendment Act 1961 andexisting at the commencement of this Act, or any localpurpose reserve for esplanade purposes created under the saidPart 25 or Part 2 or under Part 20 of the Local GovernmentAmendment Act 1978 or under Part 10 of the ResourceManagement Act 1991 after the commencement of this Act,that would impede the right of the public freely to pass andrepass over the reserve on foot, unless the administering bodydetermines that access should be prohibited or restricted topreserve the stability of the land or the biological values ofthe reserve:(b) to the extent compatible with the principal or primary purposeof the reserve, its value as a soil, water, and forestconservation area shall be maintained.[22] Mr Christensen submitted for Rangitira that s 60(2) of the Crown Minerals Actis the primary provision under which the Council must make its decision on access.Section 60(2) imposes no restrictions on the Council's discretion. Therefore,the Council is not bound to give effect to, or make its decision in accordance with,s 23 of the Reserves Act. It may consider any and all factors it views as relevant to itsdecision on the application. However, Rangitira accepted that the Council must atleast "have regard to" the provisions of s 23 when making its decision. In other words,the provisions of s 23 are a mandatory relevant consideration, but they are not the onlyconsideration. Therefore, the Council may weigh the matters set out in s 23 againstother factors such as the economic benefits of the proposed mine for the Buller Districtand any proposals by Rangitira to enhance natural areas outside the application areaand the reserve.[23] In contrast Mr Smith submitted for the Society that the Council must make itsaccess decision in accordance with s 23 of the Reserves Act. In other words, s 23obliges the Council to administer the reserve so as to protect its natural features andmaintain its value as a soil, water and forest conservation area to the extent compatiblewith its primary purpose as a water conservation reserve. Section 60(2) of the CrownMinerals Act does not displace other applicable constraints on landowners'decision-making. Nor does it demote those constraints from obligations to mandatoryrelevant considerations.[24] Therefore, in broad terms, Rangitira submitted that the answer to the questionsat [19](a) and (b) should be, "Yes", and (c), "No". The Society submitted the opposite.[25] Nation J held in favour of Rangitira:5[77] I accept the submission for Rangitira that, in considering the accessapplication, the Council should have regard to the objectives ofthe Reserves Act and both the specific (water conservation) and general (s 23)purposes of the reserve as relevant under s 60(2) Crown Minerals Act.However, in the end, it is for the Council to weigh the various matters to whichit has regard as it sees fit.5 Rangitira Developments Ltd v Royal Forest and Bird Protection Society Ltd, above n 2.[26] Nation J therefore answered the questions of law posed by Rangitira asfollows:6(a) Is the Council required to have regard to the Reserves Act 1977 and,in particular, s 23 of that Act?Answer: The Council should have regard to the Reserves Act 1977 and, inparticular, s 23 of that Act, as relevant considerations under s 60(2)Crown Minerals Act.(b) If so, can the Council, in exercise of its discretion under s 60(2)Crown Minerals Act weigh the matters set out in s 23 against otherfactors such as:(i) The economic benefits of the proposal to its district; or(ii) The enhancement of other natural areas (outside theapplication area and outside the reserve) by Rangitira whichmay form part of Rangitira's proposals?Answer: Yes.(c) Alternatively, is the Council required to make its decision under s 60Crown Minerals Act in accordance with s 23 Reserves Act?Answer: No. While it may have regard to matters referred to in s 23, it is not requiredto give effect to them.[27] The Society challenges those conclusions on appeal.The legislative history up to 1991[28] The Reserves Act gives primacy to the preservation and management ofreserves7 whereas the Crown Minerals Act gives primacy to promoting the prospectingfor, exploration for, and mining of Crown-owned minerals for the benefit ofNew Zealand.8 In order to understand the relationship between these two Acts, webegin by considering their history.[29] There has long been legislative provision in New Zealand for the creation andadministration of reserves. When this land was set apart as a reserve, s 167 of the6 At [86].7 Reserves Act 1977, s 3.8 Crown Minerals Act 1991, s 1A.Land Act 1948 applied, giving the Governor-General the power to set apart as a reserveany Crown land. In due course the Reserves and Domains Act 1953 was enacted, andthis in turn was replaced by the present Reserves Act.[30] The Reserves Act provides for the acquisition of land for reserves, and itsclassification and management. Under s 16 of the Act, reserves are to be classifiedaccording to their principal or primary purpose. There is provision for recreationreserves, historic reserves, scenic reserves, nature reserves, scientific reserves,government purpose reserves and local purpose reserves.9 As we have set out, thereserve in question in this appeal is stated to be held by the Council "in trust, for waterconservation purposes" and is a local purpose reserve.10[31] Section 3(1) of the Reserves Act provides:3 General purpose of this Act(1) It is hereby declared that, subject to the control of the Minister, thisAct shall be administered in the Department of Conservation for thepurpose of—(a) providing, for the preservation and management for thebenefit and enjoyment of the public, areas of New Zealandpossessing—(i) recreational use or potential, whether active orpassive; or(ii) wildlife; or(iii) indigenous flora or fauna; or(iv) environmental and landscape amenity or interest; or(v) natural, scenic, historic, cultural, archaeological,biological, geological, scientific, educational,community, or other special features or value:9 Reserves Act, ss 17–23.10 "Vesting a Reserve in the Westport Borough Council", above n 4.(b) ensuring, as far as possible, the survival of all indigenousspecies of flora and fauna, both rare and commonplace, intheir natural communities and habitats, and the preservationof representative samples of all classes of natural ecosystemsand landscape which in the aggregate originally gaveNew Zealand its own recognisable character:[32] Section 40(1) of the Reserves Act describes the functions of the body chargedwith administering the reserve, in this case the Council:40 Functions of administering body(1) The administering body shall be charged with the duty ofadministering, managing, and controlling the reserve under its controland management in accordance with the appropriate provisions of thisAct and in terms of its appointment and the means at its disposal, soas to ensure the use, enjoyment, development, maintenance,protection, and preservation, as the case may require, of the reservefor the purpose for which it is classified.[33] When the Reserves Act was enacted in 1977, the Crown owned and controlledaccess to all minerals existing on or under the surface of the land. For the purposes ofthe issues in this appeal the Coal-mines Act 1925, the Coal MinesAmendment Act 1950 and the Mining Act 1971 applied to any coal and minerals inthe reserve in 1977.11[34] Under s 4 of the Coal-mines Act, coal mining rights could be granted overCrown land and lands over which the power to grant such rights was vested in orreserved to the Crown under any statutory or other authority.12 Under s 8 ofthe Coal Mines Amendment Act all alienations of land from the Crown were deemedto be made subject to the reservation of all coal existing on or under the surface of theland and subject to the reservation of the power to grant coal mining rights over theland. We note also that s 59(1) of the Land Act provided that, in any dispositions ofCrown land, ownership of any minerals on or under the soil was reserved to the Crown.Under s 59(2), all dispositions were made subject to the Crown's right to access the11 The Mining Act 1971 applied to minerals other than coal, see s 2(a). Section 26(1) of that Actprovided, notwithstanding anything to the contrary in any other Act, land of a certain type was tobe open for mining. Under s 26(2)(b) that land included public reserves.12 Coal-mines Act 1925, s 4(a)–(b).land in order to extract the minerals. There was no requirement for the Crown or themining licensee to reach an agreement with the landowner or occupier regardingaccess to the land for the purposes of mining. That position applied equally to reserveland.[35] Consistent with this regime, in 1977 when the Reserves Act was enacted, itwas specifically provided in s 109(2) of that Act that the Crown had the ability toexempt coal mines from the function of that Act. Section 109(1) and (2) provided:109 Application of Mining Act 1971 and Coal Mines Act 1925 toreserves(1) Nothing in this Act shall in any way restrict the operation of any ofthe provisions of the Mining Act 1971 with respect to dealings underthat Act with reserves.(2) Notwithstanding anything to the contrary in this Act or any other Act,the Governor-General may from time to time, by Order in Council,declare to be subject to the Coal Mines Act 1925 or to any specifiedprovisions of that Act, as if it were Crown land as defined by that Act,any reserve within the meaning of this Act consisting of land vestedin the Crown or alienated from the Crown as a reserve which containscoal:provided that every grant of a coal mining right over any such land sodeclared to be subject to the Coal Mines Act 1925 or to any specifiedprovisions thereof shall be subject to the consent of the Minister, whomay refuse his or her consent or grant it unconditionally or on suchconditions as he or she thinks fit to impose:provided also that in the case of a scenic reserve this subsection shallbe read subject to the Coal Mines Act 1925.[36] Also consistent with this, s 5(2) of the Reserves Act expressly stated that theReserves Act was to be subject to any Act passed either before or after thecommencement of the Reserves Act which made any special provision with respect toa particular reserve.[37] Therefore, when the Reserves Act was enacted the Crown could declare areserve which contained coal to be subject to the Coal-mines Act. As well, s 109(1)of the Reserves Act gave the Mining Act (which applied to minerals other than coal)primacy with regard to the right to mine minerals. Despite the preservation andprotection of reserves required in the Reserves Act, those provisions could not prevailover the rights of the Crown in relation to minerals. Whatever the nature of the owneror occupier and provisions relating to the land, it was up to the Crown as to whethermining would take place.[38] The Coal-mines Act was repealed by the Coal Mines Act 1979. That later Actwas:13An Act to consolidate and amend the law relating to coal prospecting andmining and to regulate the coal mining industry to ensure the proper andefficient development and use of New Zealand's coal resources.Section 20 stated:Subject to this Act and notwithstanding anything in any other Act, the Minister[of Energy] may, in his discretion and subject to such conditions as he thinksfit to specify, grant to any person a coal mining right over any land whatsoever.Therefore, the application of coal mines legislation to reserves was continued.[39] It follows therefore that we agree with the summary of Nation J as to theposition in 1977:14[53] Although the Coal-mines Act 1925 did not expressly refer to the rightto grant coal mining rights over land vested in a Council as a reserve for waterconservation purposes, I consider that, through s 59 Land Act 1948 andthrough s 8 of the Coal Mines Amendment Act 1950, and probably throughs 4(g) Coal-mines Act 1925, Parliament had provided for the Crown to retainall rights to coal and the power to grant coal mining rights over the whole orparts of the reserve. Section 25 Coal-mines Act 1925 acknowledged the powerof the warden within a mining district and the Commissioner of Crown Landsto grant coal mining rights over the reserve as land to which the power to grantsuch rights was vested in the Crown under "any statutory authority".[40] Another important aspect of the mining regime prior to 1991 was that miningactivities were not subject to the land use control provisions of the Town and CountryPlanning Act 1953. In Stewart v Grey County Council the Minister had granted amining licence giving the holder the exclusive right to occupy the appellant's freeholdland for a term of 10 years for the purpose of mining gold and silver.15 The appellant13 Coal Mines Act 1979, long title.14 Rangitira Developments Ltd v Royal Forest and Bird Protection Society Ltd, above n 2.15 Stewart v Grey County Council [1978] 2 NZLR 577 (CA).owner and occupier had strenuously objected to that. It was held that the Mining Actwas an exclusive code in respect of the use of land for mining purposes under mininglicences granted under that Act. The Town and Country Planning Act did not apply.16[41] However, in 1991 there was a significant change to this position.Legislative change to the mining regime[42] The regime whereby the Crown effectively controlled access to coal and otherminerals changed with the enactment of the Resource Management Act and theCrown Minerals Act in 1991. Significant portions of the Coal Mines Act wererepealed, and under the new Crown Minerals Act the definition of minerals wasextended to include coal.17 The repeal included Parts III and IV of theCoal Mines Act, which governed the terms by which coal mining and prospectingrights and licences were granted and exercised, as well as the establishment of statecoal mines. There was no replacement for s 8 of the Coal Mines Amendment Act.18The use of land for mining purposes, which up to that point had not been subject tothe Town and Country Planning Act,19 now became subject to its successor, theResource Management Act.[43] The Crown Minerals Act also changed the provisions relating to how accessover land was acquired. Section 54(2) provides that the holder of a mining permitshall not prospect, explore, or mine in land to which the permit relates otherwise thanin accordance with an access arrangement agreed in writing between the permit-holderand landowner (or determined by an arbitrator in accordance with the Act).As Panckhurst J put it in Powelliphanta Augustus Inc v Solid EnergyNew Zealand Ltd, these new Acts represented "an entirely new regime for miningminerals in New Zealand".20 This significant change was summarised frequently inthe papers and debates leading up to the Act going through its Third Reading.21 It was16 At 583 and 584.17 Crown Minerals Act, s 2.18 See in contrast Crown Minerals Act, s 8.19 See discussion above at [40].20 Powelliphanta Augustus Inc v Solid Energy New Zealand Ltd (2007) 13 ELRNZ 200 (HC) at [5].21 (5 December 1989) 503 NZPD 14170; (28 August 1990) 510 NZPD 3952–3953; and (4 July 1991)516 NZPD 3049.put this way during the Third Reading by the Honourable John Luxton, Minister ofEnergy, when he stated:22In summary, the consent of the Minister of Energy will deal only with theallocation of the Crown's right to minerals. The external environmentaleffects will be dealt with by the normal planning and resource consentprocedures by consenting authorities. Landowners will have the right to say"No" to mining on their property.[44] We accept as correct the statement of Kós J in Tui Trust Mining Ltd v Ministerof Energy about the position that now applies to access to land for mining purposes:23[11] The mining permit does not mean the miner has any rights to enter theland lying above the minerals. The miner must reach access arrangementswith the landowners and occupiers. That is a matter of ordinary contract. In general, the miner must negotiate access, chequebook in hand.[45] The Crown Minerals Act therefore swept away Crown control of access tominerals, and gave control of access to the owner or occupier of the land to be mined.That owner would be subject to all the laws that applied to the use of the land.The mining permit-holder would require consents under the ResourceManagement Act. The old coal mines regime ceased to apply.Analysis[46] Under the Crown Minerals Act, the owner has the right to grant or deny access,and under s 60(1) the agreement may provide for a wide variety of matters of the sortthat could be expected to be included in a contract for access to land. Then, againconsistent with the new regime in 1991 giving control of access to the owner oroccupier, it is stated in s 60(2) that an owner or occupier, in considering whether toagree to an access arrangement, may have regard to "such matters as he or sheconsiders relevant". Section 60(2) empowers a land owner to agree or not agree tomining on the land as it thinks fit. It cannot and does not affect separate legalobligations a landowner has when considering such a possibility. A power to considerother matters as the owner considers relevant can hardly be construed as oustingobligations of a legal nature in respect of the land.22 (14 August 1990) 510 NZPD 3426.23 Tui Trust Mining Ltd v Minister of Energy (2011) 16 ELRNZ 505, [2012] NZRMA 25 (HC).[47] Section 60(1) and (2) are not worded in a way which appears to oust theapplication of other legislation or any contract relating to a piece of land.Section 60(2) is a permissive provision. The section is entirely devoid of the sort ofprescriptive language that could be expected if Parliament's intention was to use thesection to override another piece of legislation applying to the land over which accesswas sought, such as s 23 of the Reserves Act.[48] We therefore agree with the submission for the Society that, properlyinterpreted, s 60(2) merely specifies that the Crown Minerals Act does not impose anyconstraints upon landowners' decisions on access. It does not free the landowner fromotherwise applicable constraints on decision-making.[49] Rangitira's approach would permit the administering body of the reserve togrant access that would defeat the primary purpose for which the reserve is held bypermitting a weighing of factors that run contrary to protection of the reserve'sfeatures. It could be expected that if that far-reaching effect was intended by s 60,Parliament would have said so.[50] We are unable to accept Rangitira's position that the provisions of s 23 aremerely a mandatory relevant consideration under s 60(2). On its face, that isinconsistent with Rangitira's primary submission that s 60(2) is the sole provisionunder which decisions on access are made and that it "imposes no restrictions on theCouncil's discretion". Moreover, s 23(2) states that every local purpose reserve "shallbe" administered in accordance with the provisions of the Act in order to manage andprotect the reserve's features. Rangitira's submission involves effectively re-writingthat provision so that requirements are demoted to mere considerations. We considerthat is contrary to the plain language of s 23.[51] We now consider other relevant sections and instruments.The order creating the reserve and s 5(2)(a)[52] Section 5(2)(a) of the Reserves Act suggests that Act does not give way to otherenactments unless those other enactments can be read as prevailing over theReserves Act:5 Restricting application of this Act(2) Except as otherwise specially provided herein, this Act in itsapplication to any reserve shall be read subject to—(a) any Act (whether passed before or after the commencementof this Act) or any Provincial Ordinance in force at thecommencement of this Act making any special provision withrespect to that reserve, whether by direct reference thereto orby reason of the reserve being vested in any particular localauthority, board, or trustees, or in any local authority of aparticular class, or by reason of the reserve being one of anyparticular class, or authorising the setting apart of any reservefor any purpose:(b) the provisions of any will, deed, or other instrument creatingthe trusts upon which the reserve is held.[53] When the land was reserved on 10 August 1951, it was reserved:24 subject to the reservations and conditions imposed by section 59 of theLand Act 1948 and subject also to the reservations imposed by section 8 ofthe Coal Mines Amendment Act 1950 [54] Likewise on 31 October 1951, when the land was vested in the predecessor tothe Council, it was noted as being:25Subject to the reservations and conditions imposed by section 59 of theLand Act 1948, and subject also to the reservations imposed by section 8 ofthe Coal Mines Amendment Act 1950.[55] Mr Christensen appeared to submit that "special provision" was made formining on this reserve in terms of s 5(2)(a) when the land was set apart as a reserve inAugust 1951, and therefore the reserve is subject to coal mining rights. He alsoappeared to submit that the vesting of the reserve in the Council in October 1951 fellwithin s 5(2)(b).[56] We are unable to see how s 5(2)(a) or (b) assist Rangitira. The enactmentsreferred to in the August and October 1951 Gazette notices are long repealed and there24 "Land Reserved in Nelson Land District", above n 3.25 "Vesting a Reserve in the Westport Borough Council", above n 4.are no corresponding replacements. The Reserves Act was not in force at the time ofthe notices. Therefore, we do not consider that the "subject to" parts of the noticescan have any bearing on the key issue before us, being the interpretation of s 60(2) ofthe Crown Minerals Act and s 23 of the Reserves Act.Other sections[57] Section 9 of the Crown Minerals Act provides:9 Other legal requirements not affectedCompliance with this Act or the regulations does not remove the need tocomply with all other applicable Acts, regulations, bylaws, and rules of law.This indicates that s 60 of the Crown Minerals Act does not remove the need for theCouncil to comply with s 23 of the Reserves Act.[58] In addition to ss 23 and 40 of the Reserves Act, the Council is also bound bys 16, entitled "Classification of reserves", which provides in subs (8):(8) When classified under this section, each reserve shall be heldand administered for the purpose or purposes for which it isclassified and for no other purpose.In our view s 16(8) reinforces the application of the provisions of the Reserves Actdesigned to protect reserves.[59] Mr Christensen submitted that s 16(8) could not be absolute, and if it were itwould be impossible in most if not all cases to grant an access arrangement for areserve. We do not consider s 16(8) is so absolute, yet it is a clear indication that areserve should be administered in accordance with its purpose.Implied repeal[60] It was held in the High Court that, to the extent the Reserves Act did limit theright to mine for coal over the reserve, those restrictions were repealed by relevantprovisions of the Crown Minerals Act.26 For the reasons we have given, we do not26 Rangitira Developments Ltd v Royal Forest and Bird Protection Society Ltd, above n 2, at [70].agree with this conclusion. Resort to the doctrine of implied repeal is unnecessary.For the reasons given above, the Crown Minerals Act is not in any way inconsistentwith the Reserves Act and does not purport to limit it. As we have set out, thecontinued application of ss 23 and 40 of the Reserves Act in relation to accessarrangements for coal mining is entirely reconcilable with the scheme of the CrownMinerals Act. This is not a situation where "two statutory provisions are totallyinconsistent with each other, so that they cannot stand together".27Section 61[61] Section 60 can be contrasted with s 61 of the Crown Minerals Act.Section 61(1A)–(2) provide:(1A) The Minister of Conservation or the Minister and the Minister ofConservation, as the case may be, must not accept any application foran access arrangement, or variation to an access arrangement, or enterinto any access arrangement, or variation to an access arrangement,relating to any Crown owned mineral in any Crown owned land orinternal waters or land of the common marine and coastal areadescribed in Schedule 4, except in relation to any activities as follows:(a) that are necessary for the construction, use, maintenance, orrehabilitation, of an emergency exit or service shaft for anunderground mining operation, where these cannot safely belocated elsewhere, provided that it does not result in—(i) any complete stripping of vegetation over an areaexceeding 100 square metres; or(ii) any permanent adverse impact on the profile orsurface of the land which is not a necessary part ofany such activity:(b) that do not result in—(i) any complete stripping of vegetation over an areaexceeding 16 square metres; or(ii) any permanent adverse impact on the profile orsurface of the land that is not a necessary part of anyactivity specified in paragraph (a):(c) a minimum impact activity:(d) gold fossicking carried out in an area designated as a goldfossicking area under or 98A:27 JF Burrows and RI Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015)at 471. See also Stewart v Grey County Council, above n 15, at 583.(e) any special purpose mining activity carried out in accordancewith a mining permit.(2) In considering whether to agree to an access arrangement, or variationto an access arrangement, in respect of Crown land, the appropriateMinister, or the Minister and the appropriate Minister, as the case maybe, shall have regard to—(a) the objectives of any Act under which the land isadministered; and(b) any purpose for which the land is held by the Crown; and(c) any policy statement or management plan of the Crown inrelation to the land; and(d) the safeguards against any potential adverse effects ofcarrying out the proposed programme of work; and(da) the direct net economic and other benefits of the proposedactivity in relation to which the access arrangement is sought;and(db) if section 61C(3) applies, the recommendation of theDirector-General of Conservation and summary referred to inthat subsection; and(e) such other matters as the appropriate Minister considers, orthe Minister and the appropriate Minister, as the case may be,consider relevant.(Emphasis added.)[62] Under s 61, access arrangements in respect of Crown land and land in thecommon marine and coastal area can be reached by agreement between the relevantMinister and the mining permit-holder. Section 61(2) lists mandatory relevantconsiderations for the Minister, which include the objectives of any Act under whichthe land is administered and any purpose for which the land is held by the Crown. Ascan be seen, there is in this section specific provision for a balancing of particularfactors such as the economic benefits of the proposed activity.[63] Mr Christensen accepted that Rangitira's argument, which treats the provisionsof s 23 of the Reserves Act as a mandatory relevant consideration under s 60(2), wouldeffectively create a regime that is equivalent to s 61 for reserve land administered bylocal authorities. If Parliament intended that result, it could have enacted similarspecific provisions for reserve land. It did not.Section 109[64] Nation J placed weight on s 109 of the Reserves Act, set out above at [35], asa "ranking provision which explains how the Court should deal with any conflictbetween s 23 Reserves Act and s 60(2) Crown Minerals Act".28 He considered thatthe general effect of that section was to give priority to predecessor mining legislation.Applying s 22 of the Interpretation Act 1999, the Judge held that the references to theMining Act and the Coal-mines Act in s 109 are to be read as references to theCrown Minerals Act.29 Section 22(2) provides:22 References to repealed enactment(2) A reference in an enactment to a repealed enactment is a reference toan enactment that, with or without modification, replaces, or thatcorresponds to, the enactment repealed.[65] Section 109(1) is of no assistance to Rangitira, because it refers to theMining Act, and that Act did not apply to the mining of coal. As we have set out, in1977 when the Reserves Act was enacted coal mining had its own separate legislativeregime comprising the Coal-mines Act, the Coal Mines Amendment Act and theLand Act. These enactments are not the Acts referred to in s 109(2). However,applying s 22(2), the references to the repealed enactments in s 109(2) may well havebeen interpreted as applying to the replacement Acts up until 1991.[66] Yet, as we have set out, in 1991 the old coal mining regime was replaced bythe Resource Management Act and the Crown Minerals Act. Under the new regimethe Crown ceased to control access to coal, and landowners were given the ability togrant or refuse access. In addition, the planning controls in the ResourceManagement Act would now apply. As we have set out above, these were fundamentalchanges to the mining regime.30[67] Section 22 therefore does not assist. It applies to enactments which replace therepealed enactment without modification. Sections 109(1) and (2) do not refer to28 Rangitira Developments Ltd v Royal Forest and Bird Protection Society Ltd, above n 2, at [76].29 At [73].30 See discussion above at [42]–[45].enactments which were in any way "replaced". There is nothing that "corresponds"to the old regime in relation to minerals or coal. Those repealed provisions and theconcepts behind them are gone. An entirely new regime has been put in place.[68] We agree with the submission for the Society that the purpose of s 109 was tomake it clear that reserve land could continue to be declared open for mining pursuantto the predecessor coal mining legislation. The concept of land being declared openfor mining is gone under the Crown Minerals Act. Section 109 is in effect redundant.We disagree with Rangitira that Parliament has simply failed to update the statutoryreferences in s 109 to refer to the Crown Minerals Act. What has been overlooked iss 109's repeal, not its updating.[69] Thus we do not consider it correct to conclude as the Judge did that s 109 ofthe Reserves Act is a "ranking provision" explaining how the courts should deal withany conflict between s 23 of the Reserves Act and s 60(2) of the Crown Minerals Act.31Section 109 has no application to the interpretation of those two sections.Conclusion on the first question[70] For the reasons we have given, we do not think it is correct to consider theissue before us in terms of whether s 60(2) of the Crown Minerals Act or s 23 of theReserves Act has "primacy". Section 60(2) is a permissive provision that merelyclarifies that the Crown Minerals Act does not impose any constraints on thelandowner's decision on access. It does not oust the application of other legislation.Because of the directive nature of s 23, the Council is obliged to give effect to itsterms. There is no conflict between the two Acts.[71] This means that the Council cannot enter into an access arrangement that isincompatible with the principal or primary purpose of the reserve.32 It must give effectto s 23 of the Reserves Act. The obligations placed on the Council in s 23 are notmerely mandatory considerations to be weighed against economic advantages to thelocal community and the enhancement of other natural areas outside the reserve.31 Rangitira Developments Ltd v Royal Forest and Bird Protection Society Ltd, above n 2, at [76].32 Reserves Act, s 23(2).[72] We conclude that the questions of law posed by Rangitira should be answereddifferently than they were answered by the learned High Court Judge. The answerswe give are as follows:In considering the application by Rangitira over the reserve vested in theCouncil:(a) Is the Council required to have regard to the Reserves Act and, inparticular, s 23 of that Act?Answer: No. The Council is required, when considering whetherto grant an access arrangement under s 60(2) of the CrownMinerals Act, to give effect to s 23 of the Reserves Act.(b) If so, can the Council, in the exercise of its discretion under s 60(2) ofthe Crown Minerals Act, weigh the matters set out in s 23 against otherfactors such as:(i) the economic benefits of the mining project 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?Answer: No. The requirements of s 23 are not for balancingagainst other factors not relevant to the protection of the reserve.(c) Alternatively, is the Council required to make its decisions under s 60of the Crown Minerals Act in accordance with s 23 of theReserves Act?Answer: Yes.The second issue — what is meant by s 23(2)(a) and (b) of the Reserves Act?[73] The second broad issue is comprised of a series of questions about theinterpretation of s 23(2)(a) and (b) of the Reserves Act. In its statement of claimRangitira sought directions on the following:(a) Does "protection" in s 23(2)(a) mean absolute protection of theapplication area or the reserve in its current state or does "protection"include enhancement of parts of the reserve by Rangitira to offset orcompensate for the impact on any areas of the reserve which would notbe protected by undertaking the mining project?(b) In relation to the management and protection of the scenic, biologicaland natural features within the reserve, as referred to in s 23(2)(a):(i) Is the Council limited to considering management andprotection of features within the boundaries of the reserve or canit consider the management and protection of features in areasbeyond the boundaries of the reserve?(ii) Can the Council take an approach to the protection andmanagement of those features by balancing the positive andnegative effects on those features from Rangitira's proposals, oris the Council required to manage and protect each individualscenic, biological and natural feature?(c) In relation to maintaining the value of the reserve as a soil, water andforest conservation area, as referred to in s 23(2)(b):(i) Is the Council limited to the value within the boundaries of thereserve or can it consider the maintenance and enhancement ofthe value of areas beyond the boundaries of the reserve as soil,water and forest conservation areas?(ii) Can the Council take an approach to the maintenance of thevalue of the reserve as a soil, water and forest conservation areaby balancing positive effects at some areas of the reserve againstnegative effects at other areas of the reserve?[74] Nation J answered the questions as follows:(a) Protection in s 23(2)(a) does not meant absolute protection of thereserve in its current state. Protection could include enhancement ofparts of the reserve by Rangitira to offset or compensate for the impacton any areas of the reserve which would not be protected by Rangitiraundertaking its proposed works.33(b) In relation to the management and protection of the scenic, biologicaland natural features within the reserve, as referred to in s 23(2)(a):(i) The Council is not limited to considering management andprotection of features within the boundaries of the reserve.It can consider the management and protection of those featuresin areas beyond the boundaries of the reserve in dealing with theapplication, insofar as they are relevant to the protection of suchfeatures within the reserve.34(ii) The Council can balance the positive and negative effects of theproposal on each of the relevant features and come to an overalldecision on whether the features are protected as a whole.35(c) In relation to maintaining the value of the reserve as a soil, water andforest conservation area, as referred to in s 23(2)(b):(i) The Council can consider Rangitira's proposed works andmaintenance and mitigation or enhancement measures, bothwithin and outside the reserve, in determining to what extentgranting access on conditions would maintain the value of thereserve as a soil, water and forest conservation area. As far asthe protection and maintenance measures outside the reserve areconcerned, it is how those measures would impact in33 Rangitira Developments Ltd v Royal Forest and Bird Protection Society Ltd, above n 2, at [110].34 At [113].35 At [118].maintaining the value of the reserve itself as a soil, water andforest conservation area which would be relevant under s 23.36(ii) The Council can balance all adverse effects and all measuresproposed by Rangitira to restore and enhance the reserve incoming to an overall decision on whether the value of thereserve as a soil, water and forest conservation area can bemaintained if the access application is granted, subject toappropriate conditions.37[75] The Society challenged all of the above declarations on appeal. However,during oral submissions counsel for both sides relied heavily on hypothetical examplesto explain their respective positions. In response, we asked counsel whether thequestions posed were amendable to determination in the abstract. We invited theparties to confer on this issue and file a joint memorandum. They did so and haveagreed that the making of the declarations sought would be premature in the absenceof the full factual context. They therefore invited us to allow this aspect of the appealby consent, quash the declarations of Nation J and make no substitute directions of ourown. We so order.Result[76] The appeal is allowed.[77] The declarations and orders made by the High Court are quashed.[78] In substitution for the declarations made by Nation J on the first issue, thefollowing declarations in response to the questions in the statement of claim are made:In considering the application by Rangitira over the reserve vested inthe Council:36 At [122].37 At [124].(a) Is the Council required to have regard to the Reserves Act and inparticular s 23 of that Act?Answer: No. The Council is required, when considering whetherto grant an access arrangement under s 60(2) of the CrownMinerals Act, to give effect to s 23 of the Reserves Act.(b) If so, can the Council in the exercise of its discretion under s 60(2) ofthe Crown Minerals Act weigh the matters set out in s 23 against otherfactors such as:(i) the economic benefits of the mining project 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?Answer: No. The requirements of s 23 are not for balancingagainst other factors not relevant to the protection of the reserve.(c) Alternatively, is the Council required to make its decision under s 60 ofthe Crown Minerals Act in accordance with s 23 of the Reserves Act?Answer: Yes.[79] We make no declarations on the second issue.Costs[80] Rangitira must pay the Society costs for a standard appeal on a band A basisand usual disbursements. We certify for two counsel.[81] We are not clear whether any order for costs was made in the High Court. If noorder was made, costs should now be determined in the High Court in the light of thisjudgment. If any order was made, it is quashed, and costs are to be determined afreshin the High Court in the light of this judgment.Solicitors:Gilbert Walker, Auckland for AppellantNatural Resources Law Ltd, Christchurch for Respondent