Crown Minerals Act Review 2020 ~ our guide

There is finally an opportunity for the public to get some change to the primary law that governs mining activity in Aotearoa New Zealand – and while we are making a more comprehensive submission ourselves, we are mindful that mining is an activity that has huge implications for us as a country, for our communities and our future generations. 

We are also mindful that while we at Watchdog have a long and proud history of defending the Coromandel from the ravages of industrial gold mining, we are by no means as well resourced to participate in these types of consultation than the industry – either their ‘interest groups’ or the individual companies that are active in Aotearoa New Zealand at present. And so, we encourage all kiwis with an interest in ensuring that our environment and our society is not negatively impacted by mining activities to get into it – make a submission. 
We have prepared this brief guide with a view to helping you to do so. There is an online ‘survey’ form at the consultation page (https://www.mbie.govt.nz/have-your-say/review-of-crown-minerals-act-1991/), which is also where you can find the entire discussion document, if you want to read it yourself and then submit.

Your Guide to submitting on the Crown Minerals Act Review 2020

Prepared by Coromandel Watchdog of Hauraki

Background: 

During the legislative reforms of the early 1990’s, the Mining Act was largely reformed, and a new Act developed to govern the mineral extraction activity in New Zealand, the Crown Minerals Act 1991 (CMA).

While the development of the CMA did see some improvements to the way in which the Industry was allowed to operate in Aotearoa New Zealand, such as introducing property owner rights, which protect the above ground rights of the property owner (although not below), it was by no means comprehensive, leaving all environmental and participatory considerations to the Resource Management Act 1991. Subsequent amendments have also added some protections for some specific Conservation areas, via the development of Schedule 4, although again, by no means in a comprehensive way.

Successive amendments to these Acts have changed all that significantly; amendments to the CMA have seen it become an Act that has an overarching purpose being to ‘promote’ mining. The RMA has had significant portions of its participatory elements removed, and the various interpretations by the Courts have seen this effects based legislation only involve the public in the very late stages of the mining process, as the triggers and thresholds for mining have been separated into each constituent component with little or no consideration – or indeed even chance to consider – given to either the cumulative impact, the social impact or the desire of the receiving community to have the activity at all.

At present the driving consideration in the CMA is economic. All other considerations are applied under [primarily via the RMA] generic and isolated criterion: earthworks, building, transport etc. This is an ineffective and disjointed way of managing any industry, especially one as high impact as industrial mining (let alone one that must be promoted).

And now, finally, a chance to have a say, to suggest change….

The discussion document is broken into Chapters, and as we are an organisation that focuses solely on gold mining, we are only covering those Chapters that relate to this.

Introduction:

As mentioned earlier, please do read the discussion document for yourself, and please do write a comprehensive submission if you are able. If not, then please take a quick look at some of our thoughts on the key issues below… you can copy and paste the bits you agree with, put a few of your own words in and fire something off today!

We have until January 27 2020 to do that. A link to the discussion document and a submission survey form is here. There are two key areas that need to change; Firstly, that purpose has to go. Government legislation governing mining should not promote the activity; it must manage it. And secondly, the Act must not rely on other legislation for basic things like including the public/community in the decision to give a company a right to mine. There must be a far greater space made, and enshrined in this Act, for the position of tangata whenua.

Our thoughts:

Chapter 1: Role and purpose statement 

  • Question 1: What aspects of wellbeing (natural capital, human capital, social capital or financial capital) should the CMA consider when making decisions to allocate and manage rights to prospect for, explore for and mine Crown-owned resources? Why should it focus on these aspects of wellbeing? 
  • Question 2: How should the purpose of the CMA be expressed through its purpose statement? Should the purpose statement be amended from promoting the prospecting for, exploration for, and mining of Crown-owned minerals for the benefit of New Zealand? If yes, why? If not, why not? If the purpose statement should be amended, what alternative wording would most appropriately describe the purpose of the CMA (e.g. administer, manage)?

This Act should consider all facets of wellbeing in Aotearoa New Zealand. Mining is a high impact activity, that leaves a significant legacy of altered environments, toxic waste sites and a disrupted community. Tangata whenua can experience significant impacts on a number of levels, and these effects must be considered. The environmental costs of industrial mining are generally quite high, and carry huge risks in the short and long term (outside of the financial risk to the company operating). Communities can be heavily impacted by the unpredictable nature of mining, given that it is totally reliant on the market for its financial sustainability. It is not uncommon for mines to be ‘moth balled’ once the price of the commodity is low, resulting is environments being compromised, significant loss to the public of New Zealand, towns in slumps, and families faced with uncertainty.

This Act must not have an overarching purpose to promote mining activity in Aotearoa New Zealand. Such legislation is there to govern, to manage, to control, but not to promote. The promotion of mining as an industry is grossly inappropriate for a piece of legislation, and undermines the intent of allowing other elements to be covered by other legislation (one of the reasons why this Act should be comprehensive). Other Acts and local planning instruments must give effect to the Act. 

This Act should manage the prospecting for, exploration for, and mining of Crown-owned minerals for the benefit of New Zealand.

Chapter 4: Community participation 

  • Question 9: In your view, should there be more public involvement in the decision-making process for the granting of CMA permits? 
  • Question 10: If so, what does that look like to you? 

There absolutely should be more public participation in the Act. The public, the community, should be able to participate from the earliest stages, before mining companies are able to invest and significant amount in looking for minerals in our lands. 

An affected community should be consulted in the earliest possible stage if a mining company has expressed interest in getting a permit in their area. The Crown should conduct initial consultation. A community’s position should carry significant weight. A community should then be involved in subsequent stages of the permitting process, and the Crown should assist the community to participate. Where mining proposals are on public land, the wider community of Aotearoa New Zealand should be given an opportunity to participate at an early stage also.

Chapter 5: Māori engagement and involvement in Crown minerals 

  • Question 11: How can we improve the processes for iwi and hapū to protect land from minerals development on a long-term basis under the CMA? 
  • Question 12: What matters should the Minister consider when considering requests for defined areas of particular significance to iwi and hapū be excluded from the operation of a minerals programme or not be included in a permit under section 14(2)(c)? 
  • Question 13: Do you think iwi engagement reports should be evaluated against a set of reporting requirements? If so, what should permit holders be required to report on in regards to engaging with iwi and hapū? 
  • Question 14: How can the Crown support effective engagement between Māori and permit holders? 
  • Question 15: What changes could the Crown make to its processes to provide for more effective engagement with Māori?

In its present form, the CMA does not enable the Crown to meet their obligations under Te Tiriti. The current requirements for consultation merely call for consultation to be attempted, in the early stages, and really negotiation under Te Tiriti as a binding covenant, and so tangata whenua must be resourced for negotiation from outset.

Multinational companies, that are well resourced, can have years to plan and prepare for an application, including undertaking fieldwork such as exploration, with tangata whenua effectively having no say, and then, at the penultimate stage, and also with other community, tangata whenua may be involved in a more significant way, although consultation with them remains non binding.

Crown must resource tangata whenua when a mining company makes an application for a permit, to ensure that the tangata whenua group is able to participate in a meaningful way. The onus to initiate consultation, and to ensure that that consultation is comprehensive, is on the company that wishes to have the permit, although the Crown must also monitor this, and ensure that no permit is granted where genuine consultation has not occurred.

Tangata whenua must be consulted comprehensively on this legislation and amendments should be made in line with their rights under Te Tiriti, particularly what a Minister should consider in closing an area, or how iwi engagement can be measured as meaningful. It is the voice and perspective of tangata whenua that should be sought. 

Chapter 8: Technical amendments

  • Question 39: Do you agree that the Minister should consider the environmental capability of potential new operators of Tier 1 permits? If so, what is the best option for doing this? Are there any unintended effects of doing so, what are these and why?

The current exclusive economic focus of the CMA is inconsistent with either the aims of the Government or with enabling a holistic approach to be taken, and for mining to be considered as an activity, rather than as a set of distinct activities as it is under the RMA. There is a definite place for various elements of the RMA to feature in the mineral activity process, however, to ensure that this activity is effectively and efficiently managed in Aotearoa New Zealand, then the environmental capability of a potential operator should be considered within the permitting process.

Administrative burden, either to the Ministry or to the operator, is an unacceptable reason not to pursue a change that would be of benefit to Aotearoa New Zealand.

Thoughts and discussion:

The Discussion document references that the Treasury has developed a “ “Living Standards Framework” to create a more holistic perspective to evaluating the wellbeing of the country, and the impact of proposed policies on it…”. If this is the case, and also considering the Zero Carbon Act 2019, then surely there must be a comprehensive overhaul of this dinosaur industry. In the meantime however, then a number of elements must be changed urgently – the purpose statement, the absence of participatory elements in the Act, the inadequacy of tangata whenua involvement, and the inability of the Act to consider the environment all need to be rectified as soon as possible.

A far greater weight must be given to the voices of the tangata whenua and communities that these decisions affect. For sustainability, for democracy, to honor Te Tiriti o Waitangi and to ensure that Aotearoa New Zealand’s can benefit from indigenous knowledge. 

Allowing multinational mining companies to come into Aotearoa New Zealand and compromise our environment, which not only gives us life, sustains us but also provides a significant economic opportunity via its natural capital, must be managed very carefully. Having a single piece of legislation which provides for consideration of the Four Wellbeings, rather than simply the economic considerations, is vital to ensure that robust decisions are made, and that Aotearoa New Zealand remains resilient going forward. 

Finally, although it is beyond the scope of this review, another key change that needs to be made is that Schedule 4 should be amended to explicitly include underground mining, as it may be possible for a more cynical company to interpret the law differently as it is in its present form. This must be clarified and enforced, to prevent from some of our most significant Conservation land being affected and compromised.

Conclusion:

Reviewing the Act will generate a significant amount of interest, and lobbying, from the very well heeled mining industry. It is vital that we all add our voice to the call to make these changes to the Act, and to ensure that our minerals are managed in a sustainable way for future generations – that it, left in the ground if that’s what the community wants!

So, get writing (copy and paste if you have to)! Let us know if you need a hand with anything, or more info.

Cheers

Augusta for the Coromandel Watchdog Team.

>>>>Discussion document and other information relating to the review at https://www.mbie.govt.nz/about/news/consultation-opens-on-review-of-crown-minerals-act/<<<<