Conservation land mining and the green genie

Mr Brownlee may have dug a big hole for the mining industry, by eyeing up Schedule 4. Conservationists' price: a better Schedule, and a higher test for mining access rights

Mr Brownlee says he now has a mining “mandate”. This is another example of political misjudgement. He thinks the Schedule 4 debate is finished. Environmentalists have hardly started.

Brownlee tried to shove the genie back in the bottle, with a joint announcement from he and Conservation Minister Kate Wilkinson, that the Schedule would be left alone — added to, even. But he’s made the green movement quite angry. Brownlee has consistently underestimated their strength; he doesn’t know yet what he’s conjured.

Friends of the conservation estate are ready to write the next chapter, in the environmental protection story that traverses the Conservation Act 1987 (establishing the Department); the Resource Management and Crown Minerals Acts of 1991 (plus RMA iterations); and the 1997 insertion of Crown Minerals’ Schedule 4.

It had been off the public agenda. Mr Brownlee has successfully, inadvertently, put it right back on, and the chance won’t be passed up to piggy-back the cause on a bit further.

Key aspects of the Ministerial announcement were that the government would update Schedule 4, with parcels of land given protected status but not yet added to the Schedule. All areas in future protected (national parks, marine reserves, and so on) would be automatically put on the Schedule. “Significant” mining access applications on conservation land would be publicly notified.

These are good developments, but environmentalists won’t be fobbed off. They will now try to better protect Schedule 4 land, and conservation land in general, with, they believe, public blessing.

Brownlee, on the other hand, no doubt thinks he’s neutralised the debate, by conceding. He might be right about that. A wise Minister, though, might also keep one eye on the inflammatory potential of aggressive pursuit of “mandates”.

Not everything is in Schedule 4 that should be, says ECO’s Cath Wallace. Nor will it be, even after the government responds as agreed. The first change sought, therefore, will be to add further categories.

National parks are in there; World Heritage areas are not, as a class. It arguably makes no sense, to confer this ultimate protection on national places, but not world places. New Zealand has signed global undertakings on world heritage, conservation and biodiversity. Ecological areas are also not there as a class, as opposed to a couple of specifically-named such areas.

Procedural safeguards may be sought, around removing land from Schedule 4. Metiria Turei’s Member’s Bill, for example, proposes that land may not be removed from the Schedule, only added, even though this could have a back-handed chilling effect on Schedule additions or (in a context where the additions are automatic) the conferral of protected status.

Currently, the provision for Schedule 4 amendment is a ‘Henry VIII clause’: it provides for an Act of Parliament to be amended administratively. If it were not so, the Schedule is much less likely to have been updated. But with the new proposal, for it to be automatically updated in consequence of other (sometimes administrative) decisions, this may be a chance to provide that removals from it, if permitted at all, are a Parliamentary matter. Or that they can only be triggered by revoking the underlying status of the land, some of which (eg, national parks) do require an Act of Parliament — though by no means all.

On conservation land more generally, under section 61 of the Crown Minerals Act, in granting permission for access for mining activities, the Minister (in this case, the Minister of Conservation) shall have regard to the objectives of any Act under which the land is administered, the purpose for which the land is held, and so on.

By contrast, section 17U(3) of the Conservation Act provides that “the Minister shall not grant an application for a concession if the proposed activity is contrary to the provisions of this Act or the purposes for which the land is held”.

In one case, access for mining purposes, the decision is discretionary, having regard to relevant matters; in the other, access for all other activities, including much less invasive activities, there’s a statutory bar in the event of inconsistency.

Conservation has this purpose, as defined in the Act: “the preservation and protection of natural and historic resources for the purpose of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public, and safeguarding the options of future generations”.

Conservation purposes, and land held for those purposes, is arguably fundamentally at odds with mining purposes much of the time (if not all of it — eg, quarrying to make roads to service the estate). If the Conservation Act test applied, mining could have a problem.

Mining’s partly-privileged position is historic. The Crown Minerals Act already moved some distance from the former regime, by giving authority to the Minister of Conservation. The industry and Mr Brownlee clearly do not see it this way, however, preferring to focus on the RMA which does govern some aspects of mining, on the same terms as everything else, and seeking to reinvolve the Minister of Energy and Resources.

The price of trying to relitigate this could be that they end up worse off. The counter-argument will now be that the Conservation-Crown Minerals distinction is hard to justify, in the light of the new public mood.

And not only is the Crown Minerals regime advantageous, relative to the Conservation Act: minerals as a natural resource were left outside the RMA, which would otherwise have imposed a sustainable management requirement. The RMA of course governs the other consents required for mining: land use, water, and so on. But there is no sustainable management test on the extraction of the minerals per se.

The industry is probably safe enough on this last point. The decision was already, I understand deliberately, made. But it is relevant, in the light of some other arguments I’ve been pursuing, here for example, on Pundit. Aspects of the RMA raise the spectre of interesting outcomes, for finite resource extraction, and carbon-intensive extraction.

These sure ain’t the good old days, mining-wise, when a mining man could take his pan, and fossick wherever he chose. But Mr Brownlee may want to remember that there’s a lot of room to move in the other direction, too: life could get a lot harder for his industry. The eco-movement does have muscle, to go with its hairy qualities; and it isn’t afraid right now to flex it.