In 1997 Watchdog made submissions on the mining provisions in the District Plan. (this is a quite separate issue from the Crown Minerals Act and Schedule 4 ) Many of these submissions were adopted by the council including mining being a prohibited activity in the coastal and conservation zones.
The mining industry Association and the Ministry of Economic Development lodged an appeal with the Environment Court against the whole of the mining provisions in the plan.
The council delayed the dealing with the mining chapter in the plan for about seven years but finally was obliged to confront the issue and a hearing in front of the Environment Court occurred in 2004. Watchdog was represented by Ian Cowper, a senior planning barrister, and Denis Tegg.
The decision of the Environment Court was not favourable. The judge ruled that prohibited activity status could not be applied to whole zones but needed to be on a more site-specific basis where it could be said with the certainty that under no circumstances during the life of the plan that mining would never be permitted.
Watchdog appealed that decision to the High Court on points of law, the chief one being that the judges definition of “prohibited activity” was too narrow and not in accordance with the intent of the RMA. The council also lodged an appeal.
The appeal to the High Court proceeded in 2005. Watchdog was again represented on a pro bono basis, this time by Sir Geoffrey Palmer and Denis Tegg with assistance from Graeme Lawrence. Judge France heard the case. He had no prior experience with the RMA having come from a criminal law background. The Watchdog case was very ably presented by Sir Geoffrey who made very strong and forceful submissions that the environment Court judge’s interpretation was incorrect. The Council was also legally represented.
Again unfortunately the decision was unfavourable to Watchdog. After taking advice from both Ian Cower and Sir Geoffrey, the decision was made to appeal again — this time to the Court of Appeal. Advice was also received from lawyers acting for the Environmental Defence Society, (EDS) when it saw the national significance of the issue regarding prohibited activity status. Regretfully, our council has lost the stomach for the fight, and decided not to appeal itself to the Court of Appeal.
With EDS backing, Watchdog then proceeded to seek leave from the High Court judge who heard the case, Judge France, to appeal to the Court of Appeal. That application was declined, and therefore Watchdog was obliged to go direct to the Court of Appeal and seek leave to appeal.
The Court of Appeal agreed in March 2006 to grant leave to appeal, and just as significantly agreed to both the Auckland City Council and the Auckland Regional Council joining us as parties to the appeal. These council’s involvement was pivotal, as it gave weight to Watchdog’s position and allow argument of the national importance of the prohibited activity status planning mechanism.
The Court of Appeal upheld Watchdog’s appeal and required that the case be referred back to the Environment Court. Subsequently negotiations were held between all the parties resulting in a consent order being agreed to, and this was approved by the Court in September 2009. Significantly the mining companies agreed for the first time that mining is a prohibited activity under the District Plan on Mt Moehau and parts of the Coromandel coast with exceptional landscape values. Also Watchdog has a Memorandum of Understanding with Council that it will notify a new Proposed District Plan by June 2012. Gary Taylor of EDS and barrister Rob Enright ably guided Watchdog through this legal mine field.
Parties end mining battle; Hauraki Herald: 18/08/2009