Royal Forest and Bird Protection Society of New Zealand Incorporated v. West Coast Regional Council et al. [2023] NZEnvC 68 (19 April 2023)

Royal Forest and Bird Protection Society of New Zealand Incorporated v. West Coast Regional Council et al. [2023] NZEnvC 68 (19 April 2023)
Environment Court of New Zealand

The Environment Court of New Zealand reviewed the resource consent granted to a mining company to develop an open-cast coal mine on a coastal escarpment near Westport. The proposed mining area possesses high ecological and landscape values because it has not been disturbed by human activity. [2023] NZEnvC 68, at para. 16. Experts noted that the area within and surrounding the mine site is “almost entirely natural” and provides significant habitat for several rare and endemic species. Id., paras. 101, 109-130.  The 800+ hectare mine would be operated for 16 years followed by a 10-year period to rehabilitate the site.  To compensate for the environmental impact of mining activities, the mining company proposed a rehabilitation program that included direct vegetation transfer and pest control, as well as off-site measures to improve biodiversity in areas outside of the mine footprint.

Section 104 of the Resource Management Act (RMA) requires decisionmakers to have regard to: 1) actual and potential effects to the environment from the proposal; 2) measures proposed by or agreed to by the applicant to ensure positive effects on the environment or to compensate for any adverse effects; and 3) relevant provisions of national environmental standards, regulations, and national/regional policy statements (among other things).  Resource Management Act 1991 (available at https://www.legislation.govt.nz/act/public/1991/0069/latest/DLM234355.html). The dispute centered on the adequacy of the mining company’s rehabilitation plan and whether the proposed plan could be considered to provide positive effects on the environment.  

Two policy statements played a pivotal role in the case: the West Coast Regional Policy Statement 2020 (RPS) and the National Policy Statement for Freshwater Management 2020 (NPSFM). These policies strongly prioritize protection of significant indigenous vegetation and significant habitats of indigenous fauna, as well as natural inland wetlands. The Environment Court observed:

Due to the wording of the policies in Chapter 7 RPS, and the very directive approach of the NPSFM in relation to biodiversity values, we are prevented from accounting for the offsetting and/or compensatory measures proposed by the applicant in terms of our consideration of the proposal under those instruments, notwithstanding their relevance as positive effects in the context of [the RMA.]

Id., para. 398.  In other words, there would still be unacceptable loss of biodiversity from mining activities, notwithstanding the proposed rehabilitation and off-site mitigation plan put forth by the mining company. The Environment Court acknowledged that there were provisions within the local district plan that supported the mining proposal, including language concerning economic and social wellbeing of the community, but concluded “none of those provisions, which remain operative, overcome the barriers to a grant of consent under the superior instruments on biodiversity values and wetlands[.]” Id., para. 401.