100% pure Middle Earth: mine not ours

Middle Earth, as my colleague quipped: it’s like that’s what we’re aiming for, one massive hole in the ground. Our legal landscape is changing, with mining in view. It’s not just the EEZ, or the RMA, or the Crown Minerals Act - it’s all of them. The ground is shifting under resource management.

Piece by piece, the National government is rewriting laws that have built our environment. The Crown Minerals Bill completes another piece of the picture - it shows why promises made were false - but that Bill is only an example of the government’s wider work.

I’ve written here on Pundit before about the EEZ Bill (now an Act), and the RMA, with two RMA reform Bills expected soon.

These are the working parts of resource management law, the really big cogs in the machine, on land and at sea. In the case of the EEZ, the biggest change has been to get that legislation in place at all. But at the same time, resource management law foundations are being chipped away. Here, Rod Oram explains:

"With the RMA, though, we pioneered a new approach to dealing with the adverse environmental impacts of economic development. Rightly, the Act is widely admired internationally for doing so."

He writes of "gutting" the RMA, calling it "unwise".

So far, the only one of the big Acts not touched is Conservation. I guess some lessons were learned in 2010, but as the government well knows, it doesn’t need to change the law to breach it in the observance; all it needs to do is twist DOC’s arm up behind its back.

In July 2010, after some of us - 40,000 in Auckland alone - had marched down Queen St, and the government received about the same number of written submissions, Ministers Brownlee and Wilkinson announced that New Zealanders had been heard.

After that consultation about mining in national parks, decisions were made confirming that no land would be removed from Schedule 4 to the Crown Minerals Act, which regulates mining.

Some of the things in the Bill before Parliament now will give effect to those promises. At the same time, other changes cynically undermine that commitment. So yes, no land is being removed - but other things no less important are.

Introduced a fortnight ago, the Bill amends conservation, reserves and wildlife legislation, as well as the principal Crown Minerals Act, to (according to its own brand-new purpose clause): “promote prospecting for, exploration for, and mining of Crown owned minerals for the benefit of New Zealand ...”.

This would replace the current equivalent, which simply says that it is: “An Act to restate and reform the law relating to the management of Crown owned minerals”.

In the interests of "promoting" these things, the goalposts are significantly shifted.

The Bill alters decision-making about mining and mineral access, and about Schedule 4, in some good ways, and some bad. In particular, it introduces a new ‘economic benefits’ factor for access decision-making.

The Crown owns land, just as you do, in your back yard. And when a miner wants to come and dig it up, the council will decide some things under the RMA, and you, as the land owner, get to have a say too.

And so, in 1991, that’s what the Crown Minerals Act - for the first time - said. It said that on public conservation land, the Conservation Minister would decide about what is called ‘access’ under the Act.

Now, though, both Mrs Wilkinson and her colleague - who has no interest in public conservation land, but much interest in Crown-owned minerals which may lie beneath it - the Minister of Energy and Resources will decide. And to give the Minister of Energy and Resources some interest in the matter (because stuff about conservation purposes really isn’t any of his business), the access decision-making Ministers will be required to have regard to a new ‘economic benefits’ factor, inserted alongside the existing factors.

And you might say, well, that’s fair. If I were deciding about the rare earth - unobtainium, say (hat tip: Keith Ng) - in my back yard, its value might be a smart thing to consider, as well as the value of an unexcavated back yard.

I don't think that the metaphor holds, for public conservation land, which isn’t my - or your - backyard.

It’s true, it has degrees of value: since 1987, when the Conservation Act was passed and DOC established, no government has ever actually valued it enough to get around to deciding exactly what is in there, so that about a third of it remains unclassified land held in ‘stewardship’. Some of those places are rare and special, like the Mokihinui River Gorge, and the Denniston Plateau, others probably not so much.

But the solution to that isn’t this. It’s to classify the land: decide what’s too important other than to be dealt with for conservation purposes, and then, let the Conservation Minister administer it for those purposes. Meantime, with no caveat to the effect that the new 'economic benefit' test has to be subject to the over-riding objectives and purposes for which that land is held by the Crown, set out in the Conservation Act, it reduces it to a straight trade-off between competing Ministers and factors, in which short-term tangible benefits are weighed against a long-term gift for the benefit of others, with much more ephemeral values - beyond a $ price.

One more thing about access, before I turn to the other type of decision-making altered by the Bill, which relates to Schedule 4.

Announcing their July 2010 decisions, Mrs Wilkinson and Mr Brownlee said that if the activities were “significant”, then access applications would be publicly notified:

"The proposal will ensure that mining-related applications are treated in the same way as other applications for access to conservation land..."

It sounded like a promise, and a reassurance to all of those New Zealanders who'd written and marched. 

But in fact, all other applications for a conservation concession, whatever their scale, anything from tramping, icecream-selling, to a hydro dam, are notified. That’s how importantly we regard conservation land, when it comes to everything except ... mining.

Secondly, the Ministers of Energy and Resources, and Conservation get to decide what is “significant”. That’s right, just trust them. They’ll have regard to the effects and impacts that the mining is likely to have, along with “any other matters that the Ministers consider relevant”, and decide if that’s significant.

Perversely, this special provision for “significant” cases makes it even less likely than it is currently that those cases deemed (by Ministers) to belong in the non-significant remainder will be notified.

Land will, in future, be automatically added to Schedule 4 once it has been given one of the kinds of classifications within that Schedule. Currently, an Order in Council is needed, which has meant that the Schedule has a tendency to become quite out of date. So at the moment, the land can be classified. It may not be exempt from mining, but it can, at least, be classified for other management purposes.

What purports to have been given with one hand is, however, cynically snatched away by the other. The classification decision-making power is also to be amended, to give the Conservation Minister’s current powers under various Acts to the Governor-General by Order in Council - which is, effectively, a Cabinet decision, not a Ministerial one.

In July 2010, the explanation given for this was:

"To ensure that all considerations, including renewable energy uses, tourism and the mineral potential of the area are considered up front, conservation classification proposals will be signed off by Cabinet in the future (currently the Minister of Conservation makes those decisions alone)."

Although both the minerals under the land, and the conservation land on top, are public assets, it risks land only being protected for nature where it isn’t good for anything else.

A very large chunk of public conservation land remains held in stewardship, awaiting classification. By removing the Conservation Minister’s responsibility to decide on those classifications, this reduces that process to a straight contest between competing ideals.

This Bill’s speciousness masks the fact that beyond doubt, the Bill and its companion measures also being progressed by this government alter our living landscape, in a way that hasn’t happened in 25 years. Alongside its sweeping economic reforms in 1987, the 4th Labour government was undertaking some equally sweeping, much more positive and far-sighted, conservation and environment ones.

So is Key's 5th National government, persisting with the fallacy that it is all about balance, when it has never been clearer that Nature has, and needs, a bottom line. As Rod Oram wrote on the not-unrelated matter of the RMA: the evidence is pretty much all there. It's just that it tells the opposite story from the one being spun by the government.


Claire Browning is a Forest & Bird conservation advocate.

Submissions on the Crown Minerals (Permitting and Crown Land) Bill close on 2 November 2012.