Save Happy Valley!

Resource Consent Submission

Dean van Mierlo :: Department of Conservation

1. The applicant seeks resource consents to develop a large scale open cast coal mine in the upper Waimangaroa valley north east of Westport.

2. The Director General’s submission raised concerns regarding this application. The proposed open cast mine site is an area of significant conservation value. The Director General’s submission raised specific concerns about the impacts of the proposed mine on significant indigenous vegetation and fauna, including threatened species, and removal of their habitat. Further concerns were raised regarding water management, management of potentially acid forming waste rock (PAF) and rehabilitation. The Director General’s submission sought that the application be declined, given the acknowledged impacts on significant values, and uncertainty about the extent to which these can be remedied or mitigated.

3. Evidence will be given today on behalf of the Director General by:

Mr Campbell Robertson, a resource management planner with the Department’s West Coast Conservancy who will address relevant planning documents, in the context of the ecological evidence to be presented by the Department.
Mr Phil Knightbridge a botanist with the Department of Conservation’s West Coast Conservancy who will provide an overview of the significant indigenous vegetation values of the area subject to the application, and the long term prospects for their rehabilitation.
Mr John Lyall, an ecologist with the Department of Conservation’s West Coast Conservancy, who will provide evidence on the impacts of the mine proposal on Great Spotted Kiwi, and the applicant’s proposed mitigation programme.
Ms Kath Walker, a scientist with the Department of Conservation’s Nelson/Marlborough Conservancy who specialises in the giant land snail genus Powelliphanta. Her evidence relates to the significance of the Powelliphanta snails on the site, the impact of the proposed mine on them, and the applicant’s proposed mitigation programme.

4. The Department’s evidence at this hearing, and these submissions, are focussed very much on the habitat and vegetation values of the proposed mine site, and their significance. It is the Department’s position that the values are very significant, and that the applicant’s proposal fails to adequately avoid, remedy, or mitigate the significant adverse impacts that this mine proposal would have on those values (particularly in relation to Powelliphanta patrickensis), and that accordingly the application should be declined.

The Decision Making Process

5 Section 104 of the Resource Management Act (the Act) sets out the matters to be considered when making a decision on a resource consent application. These submissions address section 104 of the Act in a general sense. It is not proposed to analyse each of the consents applied for, in the statutory context of Section 104 of the Act. Indeed, as the Director General’s concern revolves around loss of significant habitat and vegetation values, the real focus of concern is the consent sought from the Buller District Council;

“To undertake open cast coal mining and all associated mining operations, including vegetation removal, stockpiling of overburden and soil, and construction of access roads within land within mining permit 41-515”

and that sought from the West Coast Regional Council;

“to undertake earthworks and vegetation clearance over approximately 266 ha of mining permit 41 515 associated with development and operation of the Cypress mine”

6 It is appreciated that as hearing commissioner’s you are likely to be taking a bundling approach to the consent’s sought. Accordingly, the Director General’s submission seeks the decline of all consents.

7 Relevant matters contained in Section 104 which the consent authority is to have regard to include:

  • Actual and potential effects on the environment of allowing the activity
  • West Coast Regional Policy Statement
  • Proposed Regional Land and Riverbed Management Plan
  • Proposed Regional Plan for discharges to land
  • Buller District Plan

8. Section 104 is stated as being “subject to Part 2”. Accordingly, Part 2 of the RMA also needs to be carefully considered in deciding these applications.

PART 2 RESOURCE MANAGEMENT ACT

Section 5

9. You will be familiar with the definition of sustainable management in Section 5 of the Act. There was an earlier approach to regarding the matters in Section 5 (2) as ecological bottom lines. However, the Courts more recently have been following an approach which can be described as the “overall judgement approach”.

10. In Aquamarine v Southland Regional Council the Environment Court said “that where on some issues a proposal is found to promote one or more of the aspects of sustainable management and on others is found not to attain or to attain fully, one or more of the aspects of (a), (b) or (c) of Section 5(2) it would be contrary to the judgement in New Zealand Rail v Marlborough District Council to conclude the latter overrides the former with no judgement of scale or proportion. The … method of applying Section 5 involves an overall broad judgement of whether a proposal would promote the sustainable management of natural and physical resources. This recognises that the Act has a single purpose. Such a judgement allows for comparison of conflicting considerations and the scale and degree of them in their relevant significance or proportion in the final outcome.”

11. It is submitted that this overall judgement approach is the one that ought to be adopted by Councils in considering this application. It is a sensible approach in that it reflects the deliberate broad and open language used in the RMA. It is an approach which requires you to take into account the scale and degree of the s 6(c) matters which the Director General’s submission and evidence raises, in giving effect to your broad overall judgement.

12. It is also useful to consider the High Court Decision, TV3 Network Services Lt v Waikato District Council, where at page 542, Justice Hammond observed “The importance of these sections (ie sections 5,6,7 and 8) should not be under estimated, or read down for they contain the spirit of the new legislation. It would therefore be unfortunate if the critical Part II provisions in the RMA suffered the fate of the purposes provisions in the former Town and Country Planning legislation. ie, judges of this Court read down the provisions of s3 Town and Country Planning Act 1977 and treated “national objectives” as being relevant but not conclusive. In my view Part II of the RMA is critical to the new statute. It requires courts and practitioners to approach the new machinery provisions, and the resolution of cases, with the hortatory statutory objectives firmly in view. The fact that there are some difficult issues of interpretation of Part II itself, in its relationship with the rest of the RMA does not absolve consent authorities and Courts from wrestling with those problems, or justify the side-tracking of Part II.”

13. In this case there are some “difficult” issues to “wrestle with”. The applicant and some submitters contend that the proposal to develop this mine will provide for economic well being for not only the applicant, but also part of the wider community. However, in developing the mine, the significant natural values of the immediate mine site will be adversely affected. The significance of these values and the degree of adverse effect in the absence of effective proposals for mitigation, in the Department’s submission, should lead you to a decline.

14. Section 5 requires both the ‘safeguarding’ of the life-supporting capacity of air, - water, soil and ecosystems and the ‘avoiding, remedying, or mitigating’ of adverse effects of activities on the environment. The Department submits that, particularly in the context of the endemic land snail Powelliphanta patrickensis, this application will do neither.

15. The Environment Court has observed, in relation to the meaning of ‘safeguard’, in the context of s 5 of the RMA, “The TDC is required to safeguard the life supporting capacity of the ecosystem – a direction which in our view imparts a precautionary approach to development” (See Interim Report to Minister of Conservation and Others on an Inquiry into Aquaculture References to the Tasman District Council Proposed Resource Management Plan, W42/2001, per Kenderdine J at para 551.

16. Clearly, the requirement to safeguard life supporting capacity does not proscribe activities or development in any circumstance. In this case, however it is submitted that it is important to consider the values which are being safeguarded – significant and outstanding natural values.

Section 6

17. I now consider the provisions of section 6 of the Act, which relate to matters of national importance. Particularly relevant in the context of the present development proposal is:

The protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna

18. It is noted that no comprehensive survey of significant indigenous vegetation, or significant habitat of indigenous fauna has been completed within either the Buller District or West Coast Region. Consequently, a careful assessment of these values will be required to ensure that Councils recognise and provide for these matters of national importance. Mr Knightbridge, Ms Walker and Mr Lyall will provide evidence of the Department’s assessment of the significance of the vegetation and habitat values at the mine site. Mr Robertson and Mr Knightbridge’s assessment using the Buller District Plan criteria, is that the site is significant. The council staff reports and applicant’s AEE also record a general level of agreement that the site is significant. The real issue in this case is whether the applicant’s proposal adequately provides for its protection. The Director General’s submission is that it does not.

19. It is acknowledged that Section 6 is not designed to achieve protection “at all costs”. In some cases matters of national importance can be set aside in a case of a nationally important use or development – see NZ Rail v Marlborough District Council.

20 Recent case law has touched on this important issue.

21 Auckland Volcanic Cones Society Inc v Transit New Zealand, HC AP 123-SW02, confirms as noted above that ‘protection’ does not require ‘protection at all costs’. What must be achieved is protection within the context of the overall purpose of the Act, i.e. the promotion of sustainable management.

22 The s 6 matters of national importance must be recognised and provided for in promoting sustainable management. The High Court confirmed (at para 28) “ … that one does not provide for a factor by considering then discarding it.”

23 Mr Christensen for the applicant, in his opening submissions, submitted that there is “an intention within the RMA that ‘protection’ in s 6(c) means something different to the concept of preservation in s 6(a).” Mr Christensen interpolated orally that it is “something less in fact”. This is far from decided as a matter of law however. The High Court has stated (in Volcanic Cones at para 32) “it can be noted that s 6(a) refers to ‘preservation’ which arguably may be a higher standard than the ‘protection’ referred to in s 6(b)” emphasis added. Clearly the High Court was less than convinced on this point. In the absence of authority on point, you should not read down the s 6(c) ‘protection’ requirement.

24 Canterbury Too Good To Waste Inc v Canterbury Regional Council C29/2004. (Kate Valley decision) illustrates that significance should be assessed on a regional or district basis. There appears to be no debate that on this basis, the site is significant particularly for Powelliphanta patrickensis. Additionally, it is also significant for Powelliphanta patrickensis on a national or international basis. The proposed Cypress mine site forms a significant part of the only site in the world where Powelliphanta patrickensis lives.

25 The Kate Valley decision also notes the relevance of the ‘permitted baseline’. I note however that s 104(2), as now amended, means that the ‘permitted baseline’ is discretionary in the present context. That was not the case for the Kate Valley application which was notified prior to the amendment of s 104. In exercising your discretion, and deciding what weight, if any, to give to the permitted baseline, it is also noteworthy that the permitted activity clearance thresholds in the BDP were intended to be interim only, until SNA’s in the district (such as the proposed Cypress mine site) were identified and protected. This process was intended to have been completed some time ago, but has not been. The permitted baseline, in my submission, has limited relevance in the present context because;

It is now a discretionary consideration only,
Under the BDP the permitted clearance rules were only ever intended to be interim,
Significant sites such as this were intended to be identified and protected under the BDP some time ago.

26. Another question which you will need to consider is the extent to which the proposed Cypress mine development is a nationally important purpose. In making that assessment bear in mind that it is but one of a number of mines operated by Solid Energy. You are not considering whether Solid Energy’s operations are nationally important, but rather whether this particular mine proposal is nationally important. In addition there are other significant coal mine developments presently occurring on the West Coast. Pike River Coal Company, for example, has recently received conditional approval. (approx 20 million tonnes over 20 years). Even if you do conclude that the Cypress proposal is a nationally important purpose, you must still be satisfied that adverse effects are being avoided, remedied or mitigated, and life supporting capacity is being safeguarded, and that significant habitat of indigenous fauna is being protected.

27 To reiterate, section 6 matters are subordinate to the overall purpose of promoting sustainable management. NZ Rail v Marlborough District Council, however the requirement that decision makers recognise and provide for them as matters of national importance implies that they have significant priority. They can not just be equal parts of a general balancing exercise. Harrison v Tasman DC [1994] NZRMA 139. Nor can they be considered, then effectively put to one side. Volcanic Cones

Section 7

28. Section 7 lists “other matters’ to be given particular regard. These include:

  • The intrinsic values of ecosystems
  • The maintenance and enhancement of the quality of the environment
  • The finite characteristics of natural and physical resources

Other Considerations

Biodiversity Strategy

29. The New Zealand Biodiversity Strategy is a relevant consideration under s 104(1)(c). This proposal, it is submitted, is inconsistent with that strategy in that Goal # 3 requires actions to ‘halt the decline of New Zealand’s indigenous biodiversity’. In respect of Powelliphanta patrickensis this application, in my submission, looks set to hasten its decline.

Effects

30. Returning to Section 104, the other crucial matter which needs to be considered is contained in Section 104(1)(a), being the actual and potential effects of the activity. It is worth noting that the term “effects” under the RMA has a wide meaning. It includes cumulative effects which arise over time or in combination with other effects, potential effects of high probability, and potential effects of low probability which have a high potential impact.

31. The evidence, in particular that of Ms Walker, Mr Knightbridge (and to a lesser extent Mr Lyall), will address some of the effects of concern to the Director General. With a multi facetted application such as this, the actual and potential effects are diverse. The Department’s primary concerns with the effects of this proposed mine are two fold.

32. First, there is the loss of approx 9% of habitat of a nationally endangered and absolutely protected species, Powelliphanta “patrickensis”. The evidence of Ms Walker will expand on this point. As the report of Overmars and Associates, April 2004 notes.

“if an area had 10% of the national population of a more recognised endangered species, (e.g. North Island kokako) it would certainly be considered as nationally significant habitat of indigenous fauna. If that standard were applied to Powelliphanta “patrickensis” the mine is also nationally significant habitat of indigenous fauna.”

33 In my submission, the standard (of nationally significant habitat) must be applied in this case. The RMA, and s 6(c) in particular, does not distinguish between ‘cute and cuddly’ species, such as kiwi and kokako, and those species that do not have such appeal. Powelliphanta “patrickensis” is as much a unique part of this nation’s indigenous biodiversity as the kiwi, the tuatara, or the kakapo. Would you approve a development proposal which would destroy 9% of the population and habitat of one of these icon species?

33A The applicant’s response to this significant, indeed devastating, effect of the proposed mine on some 9% of this nationally endangered and absolutely protected species, is to claim that proposed predator control will offset the losses created by the mine. While an attractive argument on the surface, this response is in my submission simplistic, and fails to bear up to closer scrutiny for a number of reasons.

  • Snail predators, including rats and possums, are very low in numbers on the plateau. They are not present in high densities (see evid of Buckingham at 4.37 “introduced mammals in the area of the proposed mine occur in very low densities” or McLennan at 5.11 “these natural refuges are characterised by … a scarcity of small mammals, including … rats”.)
  • Successful predator control does not eliminate predator’s. What effective sustained predator control will do is reduce predator’s to very low densities. This is the situation that already exists on the plateau.
  • There are three areas where the applicant proposes predator control to offset the loss of Powelliphanta patrickensis habitat and population, these are, the 20 ha enclosure, the 256 ha mine site, and (one of two possible) the 1000 ha control sites. However, predator control at the mine site will be meaningless for Powelliphanta as the site will not support the species until rehabilitation vegetation and invertebrates are well established (60 to 80 years, if at all, according to the evidence of Ms Walker). In this respect you will recall that Ms Simcock confirmed that there was no evidence that Powelliphanta had survived or recolonised direct transfer sites at Stockton. The wider 1000 ha predator control area will likewise be meaningless for Powelliphanta patrickensis. As a comparison of the distribution map appended to Mr Buckingham’s evidence, and the proposed control areas (Fig 2, evid of Mr McLennan) illustrates, the species does not inhabit these areas. That leaves the 20ha predator exclosure area.
  • While in the short term a 20ha predator exclosure could benefit any Powelliphanta patrickensis within that exclosure (if they are not predated by kiwi), the benefits would be minor compared to the loss of 9% of the population and habitat of the species.
  • As noted, Ms Walker’s evidence will be that it is likely to be 60 to 80 years at best, before rehabilitated mine site provides habitat for Powelliphanta patrickensis, if it ever does. Proposed predator control for a period of 30 years will accordingly not mitigate adverse effects for the duration of those effects.
  • Possum and rat control on the open plateau, over the relatively small area of habitat occupied by Powelliphanta patrickensis, can be achieved relatively cheaply, and efficiently, through traditional means, including aerial 1080. (approx $18. per ha) The reason it is not occurring at present is because possum densities are very low. Even if that were not the case there is little point in protecting a population which is destined to be destroyed through mining activities. In short, if possum and rat control is critical for the species, it can and will occur whether or not this mine proceeds.
  • The areas of good snail habitat, with the best densities, generally follow the areas where Solid Energy intends to mine in the medium term future. Even if predator’s were a significant cause of Powelliphanta patrickensis decline, predator control to protect a population which is destined to become a further mine site, would not be effective mitigation at all. It would be pointless window dressing.
  • Finally, any mitigation by way of predator control should be funded for as long as the mine site is having an adverse effect on these significant habitat values. If rehabilitation is not fully successful, predator control should be ongoing. This should be provided for in proposed bond structures and quantum.

34. The second effect of concern, is the loss of significant indigenous vegetation values on the site of the mine. The evidence of Mr Knightbridge will address this in more detail. Of note is the loss of 182 ha of vegetation, and the modification of further vegetation in the balance of the 266 ha application area. This loss is permanent in the sense that the rehabilitated vegetation will have a different character. This loss includes 14.5 ha of the relatively unmodified and dense red tussock land in Happy Valley. This is a loss of 40% of a significant wetland community not replicated in the Ngakawau Ecological District.

Rehabilitation

35. Rehabilitation at a site such as this is always slow and difficult. One only needs to look at Stockton to see that, despite the recent best efforts of Solid Energy. Rehabilitation, if it works, will take decades, or centuries. It will not replicate the current vegetation sequences and landforms, and it is unlikely to return habitat for Powelliphanta “patrickensis” for many, many years, if at all. In this respect I refer you to the words of Overmars and Associates, in the context of mitigation of effects of this proposal on Powelliphanta “patrickensis”,

“the mitigation proposed to date falls far short of that required to avoid, remedy and mitigate the adverse effects of the proposed mine on Powelliphanta “patrickensis”. (emphasis added)

36. In the Department’s submission it is unwise and imprudent to issue consents for a complex project such as this, within a significant habitat and vegetation location given that little, if any, effective mitigation proposed to protect the nationally endangered Powelliphanta ‘patrickensis’. To the extent that there is a divergence between the evidence of Mr Buckingham, and Ms Walker, I remind you of Mr Buckingham’s candid, and in my submission quite proper acknowledgement, he is a generalist, “Ms Walker is the expert on Powelliphanta”.

37 In respect of Great Spotted Kiwi, the Department acknowledges the potentially promising work proposed by the applicant. Mr Lyall will talk further on that. We note however that the outcomes are far from certain, and that it is essential that the kiwi mitigation proposal be reviewed, and upgraded, if it is not proven to be effective

Relevant case law

38. We have been unable to find any reported Environment Court decision in which a ‘greenfields’ development proposal seeking resource consent would have resulted in the loss of 9% of the population or habitat of a nationally endangered species. In this sense, the present application is, in my submission, something of a test case.

39 Guidance in how to properly apply s 6(c) matters in the present context can, however, be gained from a recent Environment Court decision, Clifford Bay Marine Farms Ltd v Marlborough District Council C131/2003. This decision concerned the possible impact of a large marine farm, on Hector’s Dolphins. (The High Court, on appeal, has recently returned the decision to the Environment Court for reconsideration of certain aspects relating to invalid conditions, (Director General of Conservation v Marlborough District Council CIV 2003-485-2228, # may 2004) but the appeal related only to the vires of conditions, not the Court’s approach to s 6(c) matters.)

40 The Court found that the total South island population of Hector Dolphin is around 7200 individuals, and that it is classified as nationally vulnerable. The Court had “little doubt that Clifford and Cloudy Bays are areas of significance for this endangered species” (para 27), but also noted that “the percentage of [Clifford/Cloudy Bay] dolphin habitat occupied by the farm was less than 2% and unless the site was a particularly preferred area of habitat, this would not be a significant concern”. (para 78).

41 The scenario in respect of Hector’s dolphin at Clifford Bay contrasts sharply with Powelliphanta patrickensis at upper Waimangaroa. Patrickensis (with about 1000 mature adults) is nationally endangered, not nationally vulnerable, like Hector’s Dolphin. The Clifford Bay site is 2% of a habitat of a local sub population, whereas the Cypress mine site is 9% of the total habitat and population of the species. There was much scientific uncertainty as to the effects of a marine farm on Hector’s Dolphins, and their use of the site at Clifford Bay. Conversely, at Cypress, detailed surveys demonstrate that the site is a significant habitat site for patrickensis, and there is no doubt as to what the immediate effect of mining will be on them.

42 At Clifford Bay, given the level of scientific uncertainty as to adverse effects, the Court granted consent, subject to detailed conditions requiring baseline studies, ongoing monitoring, and removal of marine farm structures if a significant adverse effect on the Clifford Bay Hector Dolphin population was detected. (As noted above, the High Court has found the conditions to be, in part, ultra vires, and has referred the matter back to the Environment Court for further consideration). At Cypress however, the opposite is the case. We know that the site is significant for Powelliphanta patrickensis, and that the mine will destroy 9% of the known population, and 9% of the species habitat at least until rehabilitation vegetation has developed and any recolonisation has occurred.

43 The very reasons (a paucity of research into the effect of the marine farm on Hector’s Dolphins) which prompted the Environment Court to grant consent in Clifford Bay simply do not apply in the context of Cypress. And yet the level of adverse impact on significant indigenous habitat and nationally endangered wildlife are far greater at Cypress. Clifford Bay, in my submission, illustrates that the Environment Court regards the requirements of s 6(c) as a very important component to be given practical effect to in promoting sustainable management. Its requirements can not be sidelined.

Wildlife Act

44. Both Powelliphanta “patrickensis” and great spotted kiwi are absolutely protected species under the provisions of the Wildlife Act 1953. This is the highest level of legal protection afforded to species under New Zealand law. The Wildlife Act does not protect habitat however. That is achieved, through hearings such as this, under the RMA. The practical effect of “absolutely protected’ wildlife status is, however, that ‘taking, trapping, capturing, pursuing, disturbing or molesting’ of these species requires the approval of the Minister of Conservation.

Recommended Area for Protection (RAP)

45. The applicant refers to the ‘recommended area for protection’ or RAP, as mitigation for the adverse effects of this proposed mine development. This raises a question, is a recommended area for protection mitigation in terms of the RMA? In my submission, it clearly is not. A recommended area for protection is precisely that, it is a recommendation only. It has achieved no finality, and has no certainty. It is a recommendation only, and recommendations can be rejected. As Hearing Commissioners, you can not require a third party to accept the recommendations, and the RAP to be gazetted as protected lands. A RAP, of itself, does not guarantee protection, and as such is not mitigation. While the Department supports the RAP process, is keen to see it finalised, and hopes it will in due course provide some protection to the endangered species, habitats and vegetation of the Upper Waimangaroa, it does not, in my submission, constitute mitigation in the context of the present hearing. In deciding whether the applicant has taken adequate steps to avoid, remedy or mitigate the adverse effects of this mine proposal, you should disregard the RAP proposal, focus on the actual effects of the mine on the significant natural values of the site, but bear in mind that very little of the habitat of Powelliphanta patrickensis currently has any level of formal protection.

Conclusion

46 It is acknowledged that the applicant has made a considerable effort to design an ‘environmentally friendly’ open cast mine in a significant natural environment. The proposed kiwi mitigation, in particular, looks promising.

47 Nonetheless, the site of this proposed mine is very high in natural values, and the open cast mining methods will have devastating effects on the wildlife and vegetation within the mine footprint.

48 One of the wildlife species presented, Powelliphanta patrickensis is an absolutely protected, nationally endangered species. The mine would destroy 9% of this species population and habitat. That is a very significant level of loss for an endangered species, and is not a level of loss which, in the Director General’s submission, constitutes sustainable management as envisaged under the RMA.

49 The proposed mitigation in respect of Powelliphanta patrickensis will not be effective. It does not address the real threat to this species, nor address the level of loss which would be sustained as a result of the proposed mine.

50 The application should be declined.