The fight over the different kinds of wealth on the “impoverished” Denniston plateau is about more than just Denniston. Chances are, it could finish in the Supreme Court
Last week the West Coast Environment Network, Forest & Bird, and others filed appeals against the resource consent granted three weeks earlier, to coal miner Bathurst Resources.
On public conservation land, with high conservation values, Bathurst wants to dig up the coal. The environment network is staunch in its collective determination to protect what remains: much has been lost to mining already, at neighbouring Stockton, and Happy Valley.
Denniston is not just another West Coast episode, where some people try to chop things down or dig them up while others chain themselves to trees and lie down under bulldozers -- all in defence of a fairly unremarkable-looking landscape.
As the commissioners put it: “On first appearance the Denniston Plateau looks nothing particularly significant, but the more knowledge that we accumulated as to its myriad of special features, brings us to the conclusion that its amenity values are high and unique.”
The appeals, still taking shape, will have two main parts. This could conceivably end up in the Supreme Court, considering how the Resource Management Act might be used to enforce a climate change response that is not happening voluntarily.
Forest & Bird says the conservation values of this land are such that it should be protected from mining. Denniston, said our president Andrew Cutler on Monday, is “one of a kind”. Here’s my favourite amazing fact, among many: a 6-metre annual rainfall.
While anyone who’s spent any time on the West Coast may not find this very amazing, Denniston, said emeritus professor Alan Mark recently, is like visiting another world, utterly unique, the most unique location on the whole West Coast. Because of its impoverished environment, Denniston, he said, is as biologically significant as the Galapagos Islands.
The commissioners, deciding this case under the Resource Management Act, said that it fell short of being an ‘outstanding natural landscape’ only by a narrow margin. They used capitals, to fabulous effect: “The conclusion that we have reached is that the proposed Escarpment Mine site is part of a Significant Natural Landscape feature that contains elements of a high degree of naturalness and ecological quality of a National scale and importance.”
And: “There is no doubt that Stockton and Denniston Plateau are the only ecosystems [of their type] in New Zealand, and that it supports indigenous flora and fauna that is both nationally and internationally rare. No party challenged this fact, and we accept the Plateau [sic] ecological significance and importance is beyond challenge.”
Even more so, because Stockton is ruined.
They said, too, that part of the plateau would be irretrievably destroyed by Bathurst’s proposal for an open cut coal mine, resulting “in the loss of approximately 140 ha of significant indigenous habitat and the permanent loss of significant indigenous vegetation”. And: “It is uncertain after rehabilitation whether the ELF [final engineered landscape form] will support indigenous fauna and flora currently found on the site.”
They therefore recorded “considerable reservations and anguish” over their decision. In the end, two things swayed them: “largely uncontested” evidence of economic benefits to the region, from 424 new jobs, and, in a huge irony, the government’s recent draft effort to protect indigenous biodiversity in a new National Policy Statement -- but not on public conservation land.
“We note the Proposed NPS for Indigenous Biodiversity is not applicable to public conservation land … We note that any further loss of biodiversity on private land (as at 2010) is deemed to be unacceptable, but that the public conservation land on the Plateau appear to have no such statutory requirement under the RMA. In this regard, we record that our decision has been somewhat constrained and to say the least very difficult.”
It may be that the RMA consent is gazumped, in the end, because the Department of Conservation must, under the Crown Minerals Act, also give Bathurst access permits for its mine. However much some Ministers may wish, DOC is not subject to those same economic considerations that tipped the scales for the decision-makers. Indeed, to take them into account would be unlawful.
However, the second issue the appeal can be expected to consider is whether and how climate change and greenhouse gases can be taken into account under the RMA.
Climate scientist Dr James Hansen, who was here recently, said that to stabilise climate and safeguard its life-supporting capacity, the world would need to phase out coal by 2030, starting now.
The first principle of the Resource Management Act, in section 5 (its purpose clause), is the "sustainable management of natural and physical resources". This means, according to the Act, ensuring that resources will be able meet the needs of future generations, and safeguarding their life-supporting capacity.
It would therefore seem odd, and ironic (again), if climate change, the biggest threat to these goals, could not be addressed by the Act. However, this is arguably what Parliament, in some confusion, has said.
The RMA was amended in 2004 by adding a couple of sections, to stop regional councils taking the effects on climate change of greenhouse gas discharge into account, when considering certain types of applications. The drafting of these sections, and their consequent legal effect, is impenetrable. The policy intent was clear and logical enough; less clear is whether that is in fact what the law ended up saying.
There will be no emissions from Bathurst, from burning the coal. They merely propose to dig it up, and ship it somewhere else. The issue was whether commissioners were allowed to consider these global effects, and indeed required to, because of the sustainable management purpose of the Act, which coal would jeopardise.
On this, the commissioners said that section 5 was “the very essence of” the RMA. “In arriving at a decision we are bound to determine whether or not the proposal, overall, is consistent with the single purpose of the Act in terms of these two clauses.”
“It was made plain to us that if we did not see fit to refuse consent to [Bathurst] to mine coal from the Plateau, a series of further judicial challenges would be forthcoming to bring the matter before the highest judicial authorities in the country.”
However, “If coal mines are to be seen as encouraging climate change in a significant way, it must be a political process to prevent them from being established and operated. We do not see the RMA as a vehicle designed to meet such political aspirations, well-meaning as they may be.”
The argument about whether a particular bit of land is significant enough in conservation terms to warrant protection from the drive for economic development is not new. It is all too tediously familiar.
However, if this appeal turns into a climate litigation test case, it will change the legal landscape in a different way, and be one to watch.
Declaration of interest: Claire Browning is a Forest & Bird conservation advocate.