Tuesday, October 23, 2018

Reserves are not for mining

The Court of Appeal has made a significant decision today in the ongoing battle over the Te Kuha mine. The orcs want to rip the top off a mountain on the West Coast to dig an open cast coal mine, but there's a sticking point: most of the land is protected by the Reserves Act. Strangely, neither the mining company nor their supporters on the Buller District Council saw this as a problem. Even more strangely, relying on an archaic provision of the Reserves Act which referred to some even more archaic and long-repealed laws, neither did the High Court. In a shocking decision back in February, the High Court ruled that the Crown Minerals Act trumped the Reserves Act, effectively opening every reserve in New Zealand to mining.

Today, the Court of Appeal reversed that. The decision isn't very long, but the short version is "if Parliament had meant for that to happen, they would have explicitly said so". The slightly longer version is that the Crown Minerals Act regime is so different from the long-repealed legislation that the usual interpretive presumption of reading references to repealed acts as references to their corresponding replacements simply does not apply:

There is nothing that “corresponds” to the old regime in relation to minerals or coal. Those repealed provisions and the concepts behind them are gone. An entirely new regime has been put in place.
Instead, the Court of Appeal relies squarely on the Crown Minerals Act provision that mining is subject to all other applicable legal obligations, and ruled that access to dig the mine is subject to the Reserves Act. Which you would hope would kill it. Of course, it will probably go to the Supreme Court, because the mining industry will not accept such a limitation on its "right" to destroy our environment. But you'd hope that they'd uphold the obvious: that reserves are for protecting, not mining.