BEFORE THE ENVIRONMENT COURT

Decision No. [2013] NZEnvC Gti--

IN THE MATTER of an appeal under s 120 of the Resource Management Act 1991 (the Act)

BETWEEN WEST COAST ENVIRONMENTAL NETWORK INC ("WCENT") (ENV-2011-CHC-000095)

AND ROYAL FOREST AND BIRD SOCIETY OF NEW ZEALAND INCORPORATED ("Forest & Bird") (ENV-2011-CHC-000097) Appellants

AND WEST COAST REGIONAL COUNCIL AND BULLER DISTRICT COUNCIL

Respondents

AND BULLER COAL LIMITED ("BCL")

Applicant

Hearing Dates: 29-31 October, at Christchurch 1, 5-7 November 2012 at Greymouth 8-9 November 2012- site visit 26-3 0 November, and 3-7, 17-18 December 2012 at Christchurch

Court: Environment Judge LJ Newhook Commissioner WR Howie Deputy Commissioner C M Blom

Participants: Mr QAM Davies for WCENT PD Anderson for RFBPS HM van der Wal and FA Hughes for Respondent JM Appleyard, BG Williams and M Cayford for BCL TG Sumner for himself (s274) 2

INTERIM DECISION

A. Consent indicated subject to some further inputs from parties and further work on draft conditions of consent.

B. Costs reserved.

Introduction

[1] Buller Coal Limited, a wholly owned subsidiary of Bathurst Resources Limited, proposes to establish and operate an open-cast coal mine called the Escarpment Mine Project ("EMP") on 157 hectares ofland at the southern end of the Denniston Plateau. That represents approximately 9% of the total area of the plateau. It plans to process the coal on the plateau and the total footprint of the infrastructure needed to move, process and transport the coal off-site is estimated by witnesses for the parties to this proceeding to be in the vicinity of 185.72 ha. 1 The land is in Crown ownership and held predominantly by the Department of Conservation, but with some held by Land Information New Zealand ("LINZ"). The consent of these bodies would be necessary for the mine to proceed.

[2] Of relevance to the present proceeding, a variety of resource consents are required from the West Coast Regional Council and the Buller District Council. These were in fact granted in August 2011 after a joint hearing by independent commissioners. These consents have been appealed by two submitters, the Royal Forest and Bird Society of New Zealand and West Coast Environmental Network Incorporated. Mr Terry Sumner is also a party to this proceeding under s 274 of the Resource Management Act, opposed to the grant of consent. An appeal was also lodged by the Fairdown-Whareatea Residents Association, but that has been resolved in mediation and is no longer before the Court. 3

The principal issue

[3] The proponents and opponents of the proposal agree to one extent or another that it will produce economic and social benefits for the Buller District. There is also common ground that there will be adverse effects on the landscape and ecology of the Denniston Plateau, some of them irreversible. The parties are significantly divided on the extent ofthe positive and adverse effects. Ultimately, the issue for the Court to determine in the light of the relevant statutory instruments and the overarching purpose of the Resource Management Act, is which of the various competing elements amongst those favouring consent and those favouring refusal, merits tfie more significant influence in the final outcome.

The proposal, the site and the locality

[4] We now describe the proposal in further detail, outline the various consents required, describe the environment affected by the proposal, and determine the effects of the proposed activity on the environment. We then consider those effects in the context of the relevant statutory instruments, have regard to any other matters relevant to our decision and the commissioners' first instance decision, and finally we test our conclusions in light of part 2 of the Act.

[5] The coal to be extracted consists of a single seam between 1 and 9 m thick lying beneath overburden of a thickness varying from 20 to 60 metres in the southern part of the Denniston Plateau. It would be extracted from west to east, firstly from a block known as the Escarpment Block, and then from the Brazil block to the east. Between these blocks lies a narrow valley known as Barren Valley, where the initial overburden from the mine would be placed. Subsequently, overburden would be placed in an engineered land form ("ELF") behind the advancing coal face? Approximately 550,000 tonnes of coal is expected to be mined in the first year, with the remaining coal mined at approximately 1 million tonnes per annum thereafter. If the coal is won at this rate, the mine is expected to have a life of approximately five years.

[6] BCL emphasised3 that it was targeting primarily high quality coking coal at Denniston, as opposed for instance to the lower quality lignite resources of Southland. 4

Coking coal is today a critical component in the manufacture of cement and steel, particularly the latter. It is the reductant properties of the carbon in this coal, rather than the thermal properties, that are of importance because the chemical composition (as in the EMP locality) is typically of low ash, high swell and fluidity, high fixed carbon, and mainly low in sulphur content. These qualities make this coal ideal for export to metallurgical markets such as the Asian steel markets. While issues about assessing quantities present in the ground were challenged in cross-examination on the basis of changing international guidelines (and in respect of which we were generally satisfied that BCL had approached the methodology with acceptable conservativism), there was little challenge concerning the quality of coal present, and we accept the evidence.

[7] The coal won would be transported to a coal processing plant to the south of the area to be mined. There it will be either fed directly or stockpiled for eventual feeding into the processing plant where contaminants will be separated4 and the coal reduced to cobbles less than 50mm in size. After processing, the coal would be transported from the plateau by a slurry pipeline to a train load out and dewatering facility at Fairdown.5 The pipeline will consist of 7km of DN300 steel pipe to the escarpment edge and a further 2.5km ofDN250 pipe to the plant at Fairdown.6

[8] Water for transporting the coal via the pipeline, and also for some of the processes used in the coal processing plant, would be pumped from the Waimangaroa River at up to 140 litres per second. A storage reservoir of 73,000m3 would be created for use in periods of low flow. It is proposed that a submersible pump behind a weir in the Waimangaroa River would deliver 140 litres per second ("Lis") of water to a pumping station 150m back from the intake pump.7 From there it would be delivered to the freshwater reservoir through a pipeline with an external diameter of approximately 350mm. The majority of the pipeline would be laid on the surface of existing tracks. 8 The pipeline would consist of 6m long steel sections supported on

4 "contaminants" in this context refers to rubble and non-coal-bearing materials, arising largely from the pre­ worked area. (The very first area to be mined, west of Trent Stream, has not been mined previously and so little .,.,.- ~·~- if any washing is likely, and much of the material is expected to be trucked directly off the plateau). ''sU•L ()/"';..... 5 H Bohannan, Evidence-in-chief, paragraph [57] ~-..,..:f..<.-~------., t/.~ \ 6 The location of the pipeline below the Kawatiri Energy Ltd weir was not in contention between the parties in the * ""'.. \ case. b:,~i \,iZ~) A~( \ .. ,\ 7 Mr McCracken, Ev~dence-~n-ch~ef, paragraph [217] !:p ~19·(~~~5f~;:~~(q ) ~~. \8 Mr McCracken, Evidence-m-chJef, paragraph [241] ~ ,,,~,~ ..,.t~.~}l ~,· '·-~o J :::; ·· ~:'J:t.rtVJ."('··:?' ,.J;"'"") ~ \l·.sJJ'·"·t·_j.o ,1,./ J ~~;'-) ('~ ~-i-/·1;\~"P!;\fr-:~.fi:{(i I li '; . % ~'"'li}..t-'>'VJ

plinths 6m apart. There would be a 1OOmm gap under the pipeline, and every 50 metres an underpass 300mm x 300mm would be constructed for kiwi and weka.9

[9] The overburden material which would be removed to facilitate access to the coal contains minor sulphides which, in wet conditions, generate acid rock drainage ("ARD") and acid mine drainage ("AMD"). To prevent such run-off entering local waterways, it would be necessary to establish a system for collecting and treating run­ off from the mine. A draft condition of consent provides that mining operations are not to commence before a mine-influenced water treatment plant has been commissioned.

[1 0] Buller Coal proposes to provide within the pit area a sump capable of holding 15,000m3 of mine-influenced water ("MIW"). That water would be pumped to a MIW surge sump, and from there to a water treatment plant, prior to discharge into the Whareatea River. 10 While the ELF remains unstabilised, surface run-off would drain directly into the pit sump or to drains which flow either to the pit sump or to the MIW water treatment plant. The surge sumps would be capable of holding 200,000m3 of water, and the treatment plant, when fully developed, of dealing with 350 L/s. It is estimated that would provide capacity for dealing with MIW for 95% of the time. 11

[11] Within the coal processing plant, nm-off would be directed to a recycle pond. Up to 370m3/hour of this water would be used either within the plant or in the slurry pipeline. The remainder would be directed to a recycle pond capable of holding 3 12 48,000m • This recycle pond would also receive run-off from the upper coal haul road and the amenities area. 13 If the recycle pond were to reach capacity, overflows

9 BCL advised (see particularly the evidence ofMr HJL Bohannan, CEO of Bathurst Resources Limited) of a possible future change to the means of conveyance of the coal away from the plateau. As part of a settlement with the proponents of an appeal now withdrawn (Fairdown-Whareatea Residents' Association) in connection with a stockpiling facility and de-watering plant then proposed for Fairdown, BCL has committed to using its best endeavours to identify, and if it proves feasible, consent an alternative coal conveyance system to get coal off the plateau, for instance possibly by using an aerial conveyance system. This change would require separate resource consents and landowner approvals, and so is not part of the proposal before the Court. The present appellants challenged the fact of the overall proposal continuing to include use of the slurry pipeline. The Court accepts the need for the pipeline and related infrastructure to remain part of the proposal for the time being, and possibly permanently, subject to BCL meeting and pursuing its undertaking to the Fairdown-Whareatea Residents' Association to pursue the alternative; also with BCL in the shorter term making use of trucking product by road off the plateau (a permitted activity), in connection with which BCL has obtained some resource consents for minor road upgrading works). r:·"~C-o--:~~, 10 Mr McCracken, Evidence-in-chief, paragraph [241] '*-· ~~---! 1;~. 11 Dr Ellis, Evidence-in-chief, paragraph [112], [113] 12 ~ '·-.., \ Dr Ellis, Evidence-in-chief, paragraphs [51]-[52] t},G>1 (l~, ,,;:~ \ \1 3 In supplementary evidence Mr McCracken described relocating the amenities area to the Barren Valley so that ~pJ~~,~J~~7)\ \ ~~ l this runoff would go to the mine pit or the MIWTP . {'"';q,J .. ,,I-:. ! ~, ~ ~~~xt~~~;\).:~\v / l,:,~: <~, t .... ~.~~tJ:t~A~2 ... l, / ·\'":' /~ /,,\".- ._'li/T co·u~f~\~~;.:>" ....-1 ~¥'' 6

would be directed by an engineered channel to a surface water treatment plant. 14 The areas from which water would flow to the recycle pond and surface water treatment plant would be constructed of low or non-acid forming rock, hence not designed to deal with acid-rock drainage. Inflows would be treated with flocculants to reduce sediment discharges to the Whareatea River. 15

[12] A number of streams intersect the proposed mine area. These include the Trent Stream, V40 Stream and S Creek, which are part of the Whareatea Catchment, and V37 Stream and V8 Creek, which are tributaries of Cascade Creek. 16 It is proposed to divert all clean water from these and other unnamed streams away from the mine workings and CPP area by a series of drains, which would direct the water to existing clean water streams. 17 After mining has been completed, it is proposed to reinstate these streams. Buller Coal's evidence is that the design of steep channels to recreate the existing streams would be challenging, and that a series of step-pools are likely to be used to dissipate energy and reduce the potential for erosion. The company proposes to mmour the stream with boulders and rip-rap for the same purpose. 18

[13] It is intended to establish an amenities area in the Barren Valley beside the MIW Treatment Plant. This would contain the mine office, an office and workshop for the mining contractor, an equipment wash-down system, a facility to provide fuel for the mining contractor, areas for parking mining equipment and a system to collect and hold sewage. 19 All sewage and grey water from this building would be held in a collection tank and transported to Westport for treatment. 20

[14] The EMP would be accessed via the little-used Denniston to Mt Rochfort Road. A section of this road runs through the proposed coal processing plant area, so would be diverted to enable continued public use. Mine traffic would then use an "offline" haul road between the top of the mine at Trent Stream, to the coal processing plant below. An upgrade of the Mt Rochfort Road would also be required between the coal processing plant and the township ofWaimangaroa at the foot of the plateau. Buller Coal has recently received approval from Buller District Council for additional upgrades arising from the need to truck coal off the plateau as a consequence of the

14 Dr Ellis, Evidence-in-chief, paragraphs [??] -·-~ 15 Dr Ellis, Evidence-in-chief, paragraphs [71]-[72] ~\:J\1. Or'' 16 Dr Ellis, Evidence-in-chief, paragraphs [34]-[35] ~~------!Jt0~ 1 Mr McCracken, Evidence-in-chief, paragraph [166] < 18 Dr Ellis, Evidence-in-chief, paragraphs [159] and [161] "rz. "J:;:-" rJ' 19 Mr McCracken, Evidence-in-chief, paragraph [210] fE! ~.•\?.~-~~Ynf.Ji'i\ f~. 0 Mr McCracken, Evidence-in-chief, paragraphs [211], [214] =.: .[·l:v:~>};f;jli,\} J .,._,: f ...- ~ •'_\ V·.'J ~. ,,_. r·\.; ,.,._} ...... ,

agreement reached with the Fairdown-Whareatea Residents' Association as discussed elsewhere. The upgrade works include widening and the installation of drainage.

[15] Power to the EMP would be provided by a 33kV power line from Powerhouse Road. Buller Coal has an agreement in place to purchase electricity from Kawatiri Energy Limited, and the power line would follow the route of the coal slurry pipeline to Fairdown. An 11kV power line would follow the route of the coal haul road between the Coal Processing Plant and the mine. Power to the freshwater pump station close to the Waimangaroa River would be provided via an existing but disused power line running from near the site of the old Burnett's Face school. This would also be connected to the Coal Processing Plant. Mr McCracken, a mining engineer retained as a consultant by Buller Coal, gave evidence that the line would be positioned to make maximum possible use of existing tracks and the road that runs between the Coal Processing Plant and Denniston.

[16] The consents granted by the Councils for the mining and the discharge of contaminants connected with coal processing and transport were limited to twelve years, as were those for most of the other infrastructure associated with the project. Consents for discharge of contaminants into water either directly or via land are for thirty-five years. While the mine is expected to have a working life of approximately 5 years, an extended duration would be required for the ELF discharge consents to provide for the treatment and discharge of mine-influenced watel1 necessitated the possible need for retention of the MIW treatment plant for approximately 25 years. This would also provide for the control of sediment as the slopes are rehabilitated. While the durations of the ELF discharge consents were expressly extended by the hearing commissioners, by contrast, those associated with the coal processing plant and related infrastructure were limited to 12 years. The commissioners acknowledged that while BCL was seeking the use of this equipment on a longer basis, they did "not wish to provide any indication ... [of] .. .further mining in this area."

[17] To achieve full extraction within the proposed 5 year timeframe, the company proposes a 24 hour/7 day week mining operation. Lighting for night time operations would be provided from towers at the coal face and tip points on the ELF, and would be directed to the operations in progress.22 Mr McCracken's evidence was that it would not be onerous to ·comply with District Plan noise standards as the nearest 8

dwelling is more than 3.5 km from the mine site and 1.7 km from the closest point where coal haul trucks would be operating.Z3 Night time blasting is not intended, according to the draft conditions of consent.

[18] The overburden removed to give access to the coal seam would be used to create the ELF over the mine site and is designed to resemble as far as possible the existing landform. Dr Ellis, a civil engineer called by BCL set out 4 objectives for this landform: 24

• to minimise the potential for acid mine drainage;

• to create stable landforms with erosion resistant surfaces and indigenous vegetation cover on which sediment generation and runoff can be managed and sustainable plant communities grow;

• to establish in the medium to long term, self-sustaining ecosystems, with a range of animal and plant species similar to that which existed before the land was disturbed;

• to promote development at the perimeter of the mine of vegetative cover which would prevent erosion and sediment generation, and assist m blending the engineered landform into the surrounding landscape.

The landform has been designed to maintain stability in an earthquake with an annual exceedance probability of 1:150.25

[19] BCL proposes to manage the potential for acid mine drainage and acid surface run-off by handling materials according to the results of in situ testing.26 Non acid­ forming rock would be stored separately from that likely to produce acid. In rehabilitating the mined area to its final landform in areas proposed for eventual forest or scrub coverage it is intended to place a low permeability layer over buried material which includes acid-forming rock. The mine slopes would be punctuated by 4 metre wide benches to provide drainage, erosion control, and maintenance access. The maximum height of slopes between benches would be 20 m. Where the intention is to 9

create pakihi wetland, only 1 metre of non-acid-forming material would be placed above the low permeability layer so that the topsoil would remain permanently wet.27

[20] To ensure stability of the ELF, the maximum gradient of any final landform would be 3 horizontal to 1 vertical. There would be other areas with a gradient of 5 horizontal to 1 vertical and some flat areas. The finished landform would be vegetated as soon as practicable by a variety of methods including Vegetation Direct Transfer ("VDT"), transference of existing soils and vegetation after storage or Vegetation Indirect Transfer ("VIT"), hand transplanting, hydro-seeding, fascining of vegetation with viable seed, and the spread of slash and mulch.28

[21] The ELF would, among other things, provide storage for the sludge dredged from the mine influenced water treatment plant, estimated during the lifetime of the mine to be between 340 and 615 tonnes annually.29 The sludge would be de-watered and placed in containment cells along with lime to help neutralise the content. The containment cells would incorporate a low permeability layer lined base, and a capping system, and would be located near the MIW-WTP where they would not be re-handled during the life of the mine. 30 The evidence is that neither Pakihi vegetation nor forest and scrub would be suitable as surface covering, and it is proposed to place the cells beneath either grasses or a boulder field. 31 Sludges recovered from the ongoing operation of the treatment plant would be taken off site to Westport for landfill disposal.32

[22] The applicant recognises that it is not possible to avoid, remedy or mitigate completely the adverse effects of mining on the site of the mine itself.33 It therefore proposes to establish what it describes as an offset mitigation and compensation package which would include a predator and pest control area on the Denniston Plateau and its surrounds covering some 4,500 ha in total, and a further area of something over 10,000 ha within the Kahurangi National Park, referred to as the Heaphy Management Unit. Mr Bohannan, the chief executive of Bathurst Resources Limited, explained that this package had been worked out with the Department of Conservation to satisfy the requirements of Conservation Act, and the company had

27 Dr Ellis, Evidence-in-chief, paragraphs [146], [148] & [152] 28 • ..... ,....,..~·· 4 Joint Expert Statement, vegetation, flora, wetlands rehabilitation Q15 stJ>..L OF '~ 29 Dr Ellis, Evidence-in-chief, paragraph [163] A..,~ ~~' '\ 30 Dr Ellis, Evidence-in-chief, paragraphs [164]- [167] & [170] i' ·~ ~ 31 Dr Ellis, Evidence-in-chief, paragraphs [167]- [168] -~~ Ct;,;l .. @~f 32 Transcript, page 3.87 . . !!J ~~~~::~<''I~;;:'f 1·./;,\ ~ 33 Mr Bohannan, EvJdence-m-ch1ef, paragraph [71] ...::.. ,f~ 1.\ •• I ) -~ .4.. ·' !·'' <:~':'.) - .. -- .. ~ ., <) ·-./; -;j:!) .. ,f . I~rt ~- · ~,..'. ~~-~<)·~}tl;;l_.:~i~~·· • ;~f',,,..,,, //I f..!j ~ '%~ '-.._ .--/ r.~~ / ··...:..:·:~'1 co~~~ ·~ '- l ,.r ... ~. .,._..~ ...... ~ ...... 10

assumed that it was consistent with the department's thinking on ecosystem management.34 The company contended that this package would more than offset residual adverse effects of the proposal. This was an area of considerable contention in the case.

Consents required

[23] As we have explained, resource consents for the proposal are required from both the West Coast Regional Council and the Buller District Council. From the regional council, consents are required for both the mine, coal processing plant, and transport facilities, for the following activities, which are classified as discretionary:

• to place, maintain, remove or demolish structures in, or under the bed of a water body, excavate, drill, tunnel or disturb the bed of a water body, deposit substances in or under the field of a water body, reclaim or drain the bed of a water body;35

• to enter or pass across the bed of any water body, or damage, destroy, disturb or remove any plant, or the habitat of such plants in, on, under or over the bed of a water body;36

• to take, use, dam or divert water;37

• to discharge contaminants or water into water;38

• to discharge contaminants onto or into land in circumstances which may result in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water;39

• to discharge contaminants onto or into land;40

• to discharge contaminants to air _41

34 Mr Bohannen, Evidence-in-chief, paragraphs [73]- [75], [82] 35 Proposed Regional Land and Water Plan ("PRLWP"), rule 36 36 ··"''""·"'"~~~ ...... _ PRL WP, rule 36 ·~ S'r-1\L OF l;t,~1 PRLWP, rules 54, 55, 56 o\..~·· ------. ~ 38 PRLWP, rule 36 9 \ ,, "'"l;) ':1{ PRLWP, rule 69 , 87 . ~ !!i"'~l\;t{Ji\'(\\~'~ifHrc).~~\\ r;!JP~WP,:,1 Regwnal ru~eAir Quality Plan, rule 16 -~ .~~ \.~~"tlr~,~r~ i, J -J ~ \~.,:?f··;;I~A~<~ ~- ca,~ ~r~t!t~)~{~~~1" A~~/ '~>"~____-/ <;A\ I ~couw\;V ""'-·--~ 11

Further, the mine would require consents under rules 15 and 16 of the Proposed Regional Land and Water Plan to mine coal and for associated land disturbance activities, and under the same rule the Coal Processing Plant and transport facilities would require consent for land disturbance and associated activities.42 These too are discretionary activities.

[24] The area occupied by the mine and the vanous facilities it proposes in connection with it is zoned rural under the Buller District Plan. In that zone the only land use consents required for the mining activity are for mining and for the vegetation clearance associated with it. 43 Both of these are restricted discretionary activities.

[25] The rule relating to mining restricts the consent authority's discretion, (quite widely), to the following matters:44

• location of access points, tracks and mine roads;

• distance and gradient of mined land to boundaries;

• effects on water bodies, wetlands and riparian margins;

• total area of disturbance and effects of bulk and location of stockpiling;

• hours of operation;

• protection of areas of significant indigenous vegetation or significant habitats of indigenous fauna, using the criteria in Policy 4.8.5.4 as a guideline;

• effects on indigenous flora and fauna and the life supporting capacity and functioning of ecosystems;

• effects on outstanding natural features and landscapes; 12

• effects on cultural, archaeological and historic sites;

• site restoration, rehabilitation or revegetation;

• noise control including vibrations;

• use, storage and transportation ofhazardous substances;

• financial contributions relating to landscaping, land restoration and roading;

• impacts on public access, including recreation.

The eight matters to which discretion over vegetation clearance IS restricted are included in substance in the above listed criteria.45

[26] The Coal Processing Plant and the associated transport facilities require the following district council consents for activities classified as discretionary:

• to construct, operate and maintain a Coal Processing Plant and associated activities on the Denniston Plateau;46

• widening and maintenance of the existing Whareatea Road, and construction and maintenance of mine haul roads;47

• to construct, operate and maintain an approximately llkm long slurry pipeline and associated access tracking from the Coal Processing Plant to a Coal Handling Facility at Fairdown;48

• to construct, operate and maintain a Coal Handling Facility at Fairdown which includes a dewatering and water treatment plants, coal stockpiling and rail load-out facility; 49

45 Buller District Plan, rules 5.3.2.4.4.1- 5.3.2.4.4.8 46 Rule 5.3.2.3.1 and Table 5.7 47 Rule 6.4.2.6 48 Rule 5.3.2.3.1 and Table 5.7 49 Rule 5.3.2.3.1 and Table 5.7 13

• to construct, operate and maintain an electrical substation and overhead electrical power lines with associated access tracking; 50

• to use, store and transport hazardous substances during mining and during the construction and operation of the Coal Processing Plant, Fairdown 1 Coal Handling Facility and within the electrical substation. 5

The construction, operation and maintenance of an approximately 5km freshwater pipeline, along with associated tracking from an access on the Waimangaroa River, is 2 to be considered as a controlled activity. 5

[27] We note that the proposal has changed in one significant respect since the first instance hearing. At that time the dam structure associated with the freshwater reservoir adjacent to the Coal Processing Plant had a footprint of 0.769 ha. Since large dams are buildings in terms of the Building Act 2004, the application for the dam was in those circumstances a non-complying activity by virtue of Table 5.7 of the Buller District Plan, which provides that for a building to be a discretionary activity 2 its ground floor area must be no more than 1,000m • The dam has since been re­ designed as a roller-compacted concrete structure, instead of an earthworked 2 structure, and now has a "floor area" of 980m •

[28] The Commissioners at first instance considered the Coal Processing Plant, the coal pipeline and the Coal Handling Facility at Fairdown as inextricably linked, and bundled the consents relating to all these aspects of the project and considered them as a non-complying activity. The result of the now smaller dam design is that none of 3 the activities requiring consent are non-complying. 5

[29] The planning witnesses called by the parties54 have conferred and are agreed that the proposal as a whole should be bundled and treated as a discretionary activity in terms of the District Plan.

50 Rules 6.4.2.2 and 6.4.2.5 51 Rule 6.4.2.7 52 Rule 5.3.2.2.1 53 Mr Welsh, Evidence-in-chief, paragraph ]44\ 54 Mr Welsh called by Buller Coal Limited, Mr Purves, called by the respondent councils, and Mr Allan called by Royal Forest & Bird. We note that we were also assisted by planners employed by the relevant councils, Ms Montgomery called by Buller District and Mr Ridge called by West Coast Regional Council. 14

S 104 RMA: matters to be considered

[30] We are therefore required to consider the matter under s 104(1) of the Act. Subject to part 2 of the Act, we are to have regard to:

• any actual and potential effects on the environment of allowing the activity;

• the National Environment Standard for Transmission Activities 2009;

• the Resource Management (Measure and Reporting of Water Takes) Regulation 2010;

• the National Policy Statement for Electricity Transmission;

• the National Policy Statement for Freshwater Management;

• the West Coast Regional Policy Statement;

• the proposed Land and Water Management Plan;

• the Regional Land and Riverbed Management Plan (Operative 24 September 2012;

• the proposed Regional Water Plan

• the Regional Plan for Discharge to Land;

• the Regional Air Quality Plan;

• the Buller District Plan;

• the Te Runanga 0 Ngai Tahu Freshwater Policy (as a s104(1)(c) matter);

• any other matter relevant and reasonably necessary to decide the matter.

...... [31] We note the agreement of the planning witnesses that the National .,.,$,_ '""-"•· "~ s\J>,~ llf i>,, Environmental Standard and the National Policy Statement for Electricity 1',, /_..-- ~ 1~.(· \ t. ~~ .~. "§,~ 'm·.~ "ransmission Activities can be achieved via conditions of consent and are not n ·~?:~<,.~ ...... \-~:~~~'/l:~-·.~., 'j-r. s.~ .. . \ , C:J ~. ~ {·) 1Wffi1~J.(i~ )l ;~ :.:;;, .'~ ~~·~·\'lf'lt'l'i{' .\il· .:., 1 -;.LI -~,,1 \\·~ ~;j> H.~~·.~:~t ~- ~ 0. · ''1:1\''' nt;;;• ~v f-;j f /~ ·9·r~'1'J'\.'\-""~W! ~ \; / "'~"!: r~ / tvt COU\{1 \'};_<;/ ·~--· 15

ultimately relevant to the question of whether consent should be granted. The requirements of the Resource Management Act (Measure and Reporting of Water Takes) Regulations 2010 can also be dealt with by conditions.55 We therefore consider these matters no further, except to the extent that may be required in conditions of consent if consent is granted.

[32] Mr C Welsh, planning witness for BCL, and Ms SJ Allan, planning witness for Forest & Bird, disagreed over the status of the National Policy Statement on Fresh Water, which was gazetted in July 2011. Ms Allan considered that the statement applies directly to the proposal under s104(1)b)(iii), relying on the decision of the Board of Inquiry on the North Island Grid Upgrade, which determined that the NPS on electricity transmissions applied, even though it was gazetted after the notice of requirement was issued and applications brought. Mr Welsh relieed on the Regional Land and Water Plan, on which decisions were released on 17 September 2012. That plan includes two policies of the National Policy Statement with the statement:

Policy ... does not apply to any application for consent lodged before 1 July 2011.

Mr Welsh conceded that the NPS falls to be considered as a matter to be had regard to under s 104(1)(c). We do not hold the subsection of the Act under which we have regard to the NPS as being a matter of great significance. Section 104(1) does not specify a hierarchy amongst the various matters to which regard is to be had, and it is clear that the NPS is a matter relevant to our decision.

[33] Since the proposal includes the discharge of water including contaminants into water, or onto land in circumstances where such water and/or contaminants might enter water, we must also consider s 105, which specifies a number of additional matters consent authorities must have regard to, and s 107 which restricts the circumstances in which permits for such activities may be granted. We note that Ms Allan indicated that she had no reason to believe that the requirements of these sections would not be met by adherence to the conditions imposed by the first instance hearing commissioners. 56 Once again, we consider these sections no further, except to the extent necessary in relation to conditions of consent, should consent be granted. 16

[34] Finally we note that we are to have regard to the first instance decision in accordance with s 290A of the Act.

The environment on which the proposal will impact

[35] The site of the proposed mine is at the south end of the Denniston Plateau, a rounded geographic feature of some 17.5km2 that rises from the Westland coastal plain.57 It measures approximately 4.8km across in both nmih-south and east-west directions, and is formed of relatively young sedimentary rocks which rest on much older igneous and metamorphic rocks referred to as the Te Waipounamu Erosion Surface. The major part of the plateau is elevated 600 to700 metres above sea level and has a gently undulating surface with knolls rising to 50 metres high. Immediately to the south is an up-warped section of some 2.8km2 rising relatively gently from 700 to 840m above sea level, where the plateau merges into Mount Rochfort. In the north­ 2 west the plateau is down-warped over an area of 2.0km , dropping at an angle of about 10 degrees from 600 to 480 metres, at which point the gradient steepens as the land falls away to the coastal plain. 58

[36] The knolls are separated by broad stream valleys, the most noticeable of which is the gorge formed by the Whareatea River, some 2.5km long by 350 metres wide, incised to a depth of about 60 metres into the western part of the plateau. In the nmih, the plateau falls away steeply into the 500 metre deep Waimangaroa Gorge, and the south-eastern side also drops sharply into the Cascade Creek Valley. To the west is a coastal escarpment facing the Tasman Sea. 59

[37] Denniston is one of three plateaux in North Westland, the others being Stockton, some 10 kilometres to the north and Thousand Acre Plateau approximately 45km north-east. They were all formed by similar processes, but while Stockton and Denniston are made up of sandstone and coal measures above the metamorphic rock, the sedimentary rock of the Thousand Acre Plateau is limestone.60

[38] Precipitation over the plateau (which often takes the form of fog and snow in addition to rain), is very high. Records kept at Downerton on the Stockton Plateau

57 We adopt the definition of plateau from DSG Thomas and A Goudie (eds) 2000 Dictionary ofPhysical Geography, Blackwell, Oxford, UK, cited at paragraph 18 of the evidence of Dr Mabin as an elevated area of ~·~ --.. relatively smooth terrain, frequently separated from adjacent areas by steep sides ..-<'\:, s'C.f\L OF/:".. 58 Dr Mabin, evidence-in-chief, paragraphs [10]-[12] ·'.,'·<'>·---:;;;\/{-<' '\ 59 Dr Mabin, Evidence-in-chief, paragraphs [12]-[13] , ·~~" n:\ \ 60 Dr Mabin Evidence-in-chief, paragraph [40] ,.. (JJ{ <,~,~·}_;;·,~ \ ~j ~-~"'" ... ..4 92 ~y· .,..,::!':""' !< )~~ ! z ,,[· @ ~ -:::o \ .. _\ ·, --...1 ,· (::-.> (\;)·. • ' I''<; i ~ (,(, ,, ;;~.; i 4';.: ,, ''/ ~~ r.nt !?:\ \>.~/ 17

between 1945 and 1997 show an average level of precipitation of approximately 6,070mm per year. Precipitation levels at the EMP have been modelled on the basis of a 2 month correlation between Stockton and Lake Brazil climate stations. The model suggests an average annual precipitation level of 7,420mm annually, with a variation between 4,950 and 10, 170mm. 61 Rainfall is expected to be only slightly seasonal, and extreme events can occur throughout the year.62

[39] Soils on the site are generally sparse, somewhat acidic and generally of low permeability and low fertility, with the bulk of nutrients supplied from the organic regime rather than weathering of the mineral soil. The generally low fertility combined with the harsh climate, produces very slow growth rates in native plants and a predominant pattern of stunted vegetation. 63 This vegetation was classified by the experts with varying degree of specificity. Broadly, there are three main types:

• Pakihi herbfield grassland, dominated by prostrate manuka, wire rush, turpentine scrub, coal measures tussock and Dracophyllum politium;

• Scrubland vegetation, again dominated by manuka, with emergent mountain beech, celery pine, southern rata, soft mingimingi and scattered mountain flax;

• Mixed beech- podocarp forest including mountain, silver and red beech, yellow, silver and pinl< pine, kaikawaka, rata, kamahi, Westland quintinia and pokaka.

In addition, there are areas where the soil has completely eroded, leaving exposed sandstone pavements giving rise to their own eco-systems, including some 19 ha of the mine site and a small area (about 1 ha) of red tussock grassland on and adjacent to the CPP site.64

[40] This seemingly inhospitable environment provides significant habitat for assemblages of invertebrates, 65 lizards, 66 snails67 and birds, 68 found amongst

61 Dr Ross, Rebuttal, paragraph [12.7] 62 Dr Ellis, Evidence-in-chief, paragraph [29] 63 Dr Ross, Evidence-in-chief, paragraph [67] .,~_. •. ~ ...... ,,. .___ 64 Dr Ross, Evidence-in-chief, paragraph [75.2] !f.- st.M. OF li;>·, 65 Joint expert conferencing statement (invertebrates) Q4 0 66 "-..: ~ 1' \ Joint expert conferencing statement (lizards) Q3 crt;) J1.{j \ '. 67 Joint expert conferencing statement (snails) Qll 68 92 "'~it~T(.? \ 0' Joint expert conferencing statement (birds) Q4 .,.._ \~'~"·~.,!.t\~H)' G. ~1.... :,.1\ ';;JJt•-,;}rr:'!Jt ·'·~J\"\·/ "t;;~-.....' Q 1'N\'Ic~rt•Jf., j~· ~1 ' f'{j-)~'".f~~..rl ' '\~ "?~ ~-----./..·~\\ / 'IV/ COUP0 \':;{~;_.; ---..;_,.,/ 18

vegetation· that, in the unanimous opinion of the experts called, reaches a quality necessary for significance in RMA terms.

[41] We note that some heritage issues formerly in dispute and of interest to NZ Historic Places Trust have been resolved, so we do not consider them further. The plateau nevertheless has a long history of human intervention. It has been mined since the nineteenth century, and between 1879 and 1968 settlements existed at Burnett's Face and Denniston, (at peak housing 800 people). Coal was transported by a rope-controlled railway down a steep incline. Now only a few cottages remain, along with some restored wagons at the top of the incline, and the nearby Banbury Arch which provided access to the former Banbury Mine. The town's former high school now houses a museum and information centre.69

[42] Mr A W Craig, a landscape architect called by BCL, produced a map showing numerous disused underground mines and a gravel pit on the plateau. Associated with these former mines are accessways leading to them. 70 There are roads of sufficient quality to allow general public access to Denniston and Burnett's Face, and a further road to Mount Rochfort, which over part of its length is suitable only for 4wheel drive vehicles.71 Mountain bike trails and walking tracks criss-cross the plateau in quite obvious fashion. On the summit of Mount Rochfort is a telecommunications mast that is clearly visible from Westport, the Denniston Plteau, and surrounding localities. In addition, two transmission lines run across the plateau in an east-west direction from the Mount William Range to the Waimangaroa settlement.72 Mining itself continues at Cascade Mine on the south-east of the plateau,73 and there is a small coal-handling facility at Coalbrookdale near Denniston township (which has been described as "the old wash house" and which is leased by BCL from Solid Energy NZ for the handling of coal from the Cascade mine).74

[43] The landscape architects, Mr Craig, Mr SK Brown called by the respondent councils, and Dr ML Steven called by WCENT, agreed that the plateau landscape 75 possessed very significant amenity values, evoking a strong sense of place • This accords with the sentiment expressed strongly by Denniston resident Mr T Sumner,

69 Mr Brown, Evidence-in-chief, paragraphs [60]- [61] 70 "".,.,.., ...... _ . Mr Craig, Evidence-in-chief, graphic attachment 1 sheet 5 ,_., s~J\l OF-. .. .,..... 71 Mr Craig, Evidence-in-chiefparagraphs [49]-[50] ~'t:-/·~~...... _ 0/\ 72 Mr Grey, Evidence-in-chief paragraph [70] • ~-rt.•.•• ,-~~\ \ ~:Joint experts conference statement (landscape), Q10 ~~ ·(~c~1 ,) "''·'n· . 1 Transcnpt, week 1, p 190 £E ~?\-.;:f~~"{}:(h ) ~i ·, 75 Mr Grey, Evidence-in-chief paragraph [46] ...c: ~-.· ~~.t;\.,,l.'l.. "~L , ::0 c'l'i;'n~·~v··, ,::::' J ~ '1fl£v::~' 1 ~~} ;1~ ,,,,, \~I //%. ~ '

~cou~~>'~-"!>~~-~ .. ~ 19

who gave heart-felt evidence to this effect. We also sense that the experts considered it possessed high aesthetic and associative qualities. Mr Craig wrote:

When shrouded in mist, which is a common occurrence, the plateau will feel bleak, desolate, mournful, threatening and forbidding. High rainfall and frequent wind exacerbates these effects. The presence of mining remnants may exacerbate this as well. On sunny calm days it will feel serene, peaceful and sublimely expansive.

Mr Brown described the plateau as unique, harsh, and in some respects morbidly fascinating, with a unique identity forged by the marriage of its cultural/historic heritage with a physical setting that is both spectacular and - especially during winter - bitter and inhospitable.76 He shared Dr Steven's appreciation of the austere aesthetics of the place, comparing it to the appeal of the slate valleys and mines of Snowdonia and North Wales.77 Once again, the evidence ofMr Sumner added to our understanding of these qualities.

[44] Where the 3 expert witnesses disagreed was as to whether Denniston Plateau constituted an outstanding natural landscape under s 6(b) RMA. It is now well understood that, for a landscape to require protection from inappropriate development under s6(b), it must be both 'natural' and 'outstanding' .78 What was in issue between these witnesses was whether the landscape retained sufficient 'naturalness' to qualify for the first of these descriptors. Messrs Brown and Craig considered that the proliferation of man-made items was too great to allow of that, while Dr Steven took the view that there was a clear predominance of natural over cultural processes; also because of that the landscape was 'natural' enough to pass the first test for s 6(b) significance. 79

[45] The word 'natural' as used in s 6(b) does not equate with pristine. The Planning Tribunal held in Harrison v Tasman District Counci/80 that 'natural':

... is a word indicating a product of nature and can include such things as pasture, exotic tree species (pine), wildlife ... and many other things of that ilk as opposed to man-made structures, roads or machinery.

76 Mr Brown, Evidence-in-chief paragraphs [58] and [65] 77 Mr Brown, Rebuttal, paragraph [22] 78 Wakatipu Environmental Society v Queenstown Lakes District Council [2000] NZRMA 59, paragraphs [81]­ [89] 79 Mr Craig, Rebuttal, paragraph 11; Mr Brown, Rebuttal, paragraph 22; Dr Steven, Evidence-in-chief, paragraph [86] 80 [1994} NZRMA 193 at paragraph [197] 20

The Environment Court in Wakatipu Environmental Society v Queenstown Lakes District Council81 held that the criteria of naturalness under the RMA included:

• the physical landform and relief;

• the landscape being uncluttered by structures/and or "obvious" human influence;

• the presence of water (lakes, rivers, sea);

• vegetation (especially native vegetation) and other ecological patterns.

The Court in that case observed that the absence, or compromised presence of any one of these things does not mean that the landscape is non-natural, rather that it is less natural, and that there was a spectrum of naturalness from a pristine natural landscape to a cityscape.

[46] When the landscape architects came to assess the place of the Denniston landscape on that spectrum, they were again in broad agreement. On a scale ranging from 7 (pristine, very high naturalness) to 1 (very low naturalness), all three witnesses classed the landscape as within category 5 (moderate-high), although Mr Brown and Mr Craig appeared to limit that evaluation to specific stream and wetland margins. 82

[4 7] The scale used by the landscape architects in this case was considered by the Environment Court in High Country Rosehip Orchards Limited v Mackenzie District Council. 83 In that case Dr Steven had put forward the same scale, but had proposed that the cut-off point between those landscapes which qualified for protection under s 6(b ), and those which did not, lay at the margin of those with high natural values and those where the values were only moderate-high. However, Dr Steven had qualified this by saying:

While my scale indicates the threshold as being between moderate-high and high, the reality is that there is no chop-off line of demarcation, rather there is a fuzzy zone of transition between the ranges indicated on the scale. As such, there will likely be landscapes within the moderate-high scale of naturalness that could be regarded as natural enough for ONL status. 21

The Court agreed with Dr Steven's last sentence on that occasion.

[48] In this case, Dr Steven drew his demarcation point lower, between moderate and moderate-high. That was not what the Court had sanctioned in High Country Rose/tip Orchards, nor even what Dr Steven had put to the Court. What he had put to the Court was not that all landscapes with moderate-high naturalness were natural enough for ONL status, but some might be, namely those that fell into the "fuzzy zone" of transition where the appropriate category was not entirely clear. In terms of Denniston Plateau, our site visit confirmed what we read in the evidence of Mr Brown and Mr Craig, that there were just too many human interventions to turn a blind eye, given their pervasive presence.

[49] We find that the site is not part of an outstanding natural landscape. We are nevertheless still required to have particular regard to the site's acknowledged high amenity values, and its scientific and ecological values, which were the most significant elements in Dr Steven's evaluation. These remain matters for which we are required to make provision in terms of s 6( a) and (c) of the Act.

The ecological values of the site and the Denniston Plateau

[50] As we have indicated, 84 four broad categories of vegetation exist on the plateau:

• sandstone pavement (where surface soil has completely eroded, leaving bare rock);

• coal measures/pakihi wetland;

• scrub; and

• mixed beech/podocarp forest.

[51] It is this mosaic, enabled by acidic soils of slightly varying depth and gradient, combined with the harsh climate, which produces rare ecosystems and assemblages of plants and fauna. The pakihi wetland contains as one of its principal components """'·""'"• Chionohloa juncea, a tussock confined to the Stockton and Denniston Plateaux. The '·'{s~i\l OF-;;, ,l -0v /~·~·~A- "\ ( ..-Q.·:") ) ,• ·\.~~~ \ '\''tr .S!t'/1r.~t 0 ~ 4 rn •;t~~~~1x1!~\\ ;.-~ At paragraph [65] t\~"'}'r}'l}. ~:,, •:c f ;.;; ~ 1 ~ >~ '+\~~if :~f.'. ' ;_-: ,: ,.-c .,~..,.~•,J.l"f, k,i) I . ....r.. f .i>c't''""'-''!!t"i' I. A.t 1 t ' s:;.s~A:o-i}r.~·'·::.• /1 \.1 / ~).), _/p~ / ~COUt\y/------22

areas of shrubland contain manuka which has evolved to grow prostrate, and the forest community contains as a special feature a combination of mountain beech/pink pine and yellow-silver pine. The ecosystems of the sandstone pavement areas and wetland seepages are also historically rare. 85

[52] The current New Zealand species threat classification system contains the following categories: 86

• extinct;

• threatened (naturally critical/endangered/vulnerable);

• non-resident native (vagrant/coloniser);

• data deficient;

• taxonomically indeterminate;

• not threatened.

The expert vegetation witnesses helpfully compiled an agreed list of threatened and at risk species present on the EMP site, together with indications of their preferred habitat. 87 The work done for and during the course of this hearing has actually increased the extent of knowledge of the species present.

[53] We note the presence within the site of:

• the nationally endangered lichens Austropeltum glareosum and Pycnothelia caliginosa;

• among bryophytes, Isolembidium anomalum var. anomalum, the nationally endangered Neogrollea notabilis, and the nationally vulnerable Saccogynidium decurvum and Telaranea inaequalis, the latter of which may be so restricted in area as to be nationally critical; 23

• among vascular plants the nationally critical Sticherus tener, and Euphrasia wettsteiniana, currently listed as at risk/naturally uncommon, but proposed to be listed as nationally vulnerable in revisions to the threat status drawn up in 2012.

There are also 2 at risk bryophytes and 7 at risk vascular plants on the site, including the red mistletoe, Peraxilla tetrapetala. The three plants of this latter species represent the largest known occurrence of the species in the Ngakawau ecological district.

[54] The Sticherus tener is found on a ridge that overhangs Barren Valley. During the hearing this ridge was referred to as the "Sticherus Ridge". There appears to be an example of a further Sticherus . species on the ridge, provisionally identified as Sticherus urceolatus, and if that is confirmed it would be the only example of such species in New Zealand. 88 There are three endangered non-vascular species on that ridge, including Telaranea inaequalis, and Austropeltum glareosum. The at-risk daisy Celmisia similis has also been found at this location. Dr Glenny, a plant taxonomist called by BCL, confirmed the evidence of Dr Lloyd, the ecologist called by Forest and Bird, that the collection of plants on the Sticherus Ridge was outstanding. 89

[55] Although the vegetation of the Denniston Plateau has historically been modified by outbreaks of fire, whether naturally occurring or induced by human activity, it is remarkably free from exotic influences. Mr Overmars, a consultant ecologist called by BCL, told us that the mine site west of the Trent Stream had a cover of predominantly indigenous vegetation, little modified by human activity, and not significantly affected by weed or pest species; that is, it is highly intact. East of the Trent stream, he considered the EMP footprint "moderately intact".90

[56] The assemblage of fauna supported by this mosaic of vegetative cover is also notable in resource management terms. The plateau contains populations of three lizard species, namely the West Coast green gecko (Naultinus tuberculatus), the forest gecko (Mokopirirakau granulatus) and the speckled skink ( Oligosoma infrapunctatum). Two forms of forest gecko occur on Denniston, the striped morph

~S~hl·OF~, 88 Mr Davidson, First statement of evidence, paragraph [16] « \ 89 Transcript, paragraphs [606] and [420] d.~}-~{ \tt\ ~';);f \ 90 Mr Overmarss, Evidence-in-chief, paragraph [141] FP"'-;::<' 1/'~C:>i·'j,'t:C~.:}' I ill~·.-J )t~l-1 -~' ,·,..., CJ.:- __ .... 1 ~ .'. \~I,JIJ.~!;)),~ I "<:7 ,J-.! ;;p. ··fl .• ' C.J lf..,~ ...~!fv~~ .":::: . ~:}'?.r, r.1'~1'·~··u:~·'}~ ... ~,.._., ~ ....·:/ ;.;:_·'C /~<;, • __ _./ .-:<..~ .. 'Vf COURI ~/'· 24 and the patterned morph.91 Although polymorphism in geckos is not unusual, the striped form of the forest skink occurs only on Denniston.92

[57] The forest gecko and speckled skink are both classified as at risk, with a declining population, while the West Coast green gecko is classified as nationally vulnerable.93 Further, the Denniston Plateau is the only location where this combination of species is present. The two expert herpetologists who gave evidence, Mr Chapman called by BCL, and Dr Tocher called by Forest and Bird, agreed that the entire Denniston Plateau is significant lizard habitat.94 We also note the clear statements in the evidence ofMr Chapman that that includes the proposed EMP site.95

[58] Likewise, the variety of habitat types produces an extensive assemblage of native birds. There are 36 resident or visiting species that use Denniston Plateau, of which the majority are natives and almost half are categorised as threatened or at risk.96 The mine site itself supports 26 native species, a significant number of which are included in the threatened or at risk categories. Amongst the threatened and at risk species are the great spotted kiwi, the South Island fern bird, the South Island rifleman, the western weka and the New Zealand pipit.97

[59] The expert witnesses, Dr RG Powlesland called by BCL, and Drs RK McClellan and GP Elliott called by the appellants, agreed that the quality of bird habitat within and beyond the EMP site is broadly similar, and likewise the proportions of disturbed and poorer quality bird habitat. They note that the bird habitats within the EMP are highly representative of those on Denniston Plateau which are nationally rare. The mine footprint has high connectivity with surrounding habitat for indigenous birds (particularly the escarpment) and the vast majority of it is intact. It represents significant bird habitat.98

[60] Dr Powlesland noted that the nationally endangered kaka, along with kea and kereru, had been observed in the general area in earlier surveys, but had not been detected in the various surveys undertaken in 2012. His evidence was that these

91 Mr Chapman, Evidence-in-chief, paragraph [40], Dr Tocher, Evidence-in-chief, paragraph [37] 92 Transcript page 392 and Dr Tocher, Evidence-in-chief, paragraph [37] 93 Mr Chapman, First statement of supplementary evidence, paragraph [7) 94 Joint expert witness statement (lizards) Q4 95 Mr Chapman, Evidence-in-chief, paragraphs [35] and [44] 96 Dr McClellan, Evidence-in-chief, paragraphs [36) 97 Joint expert witness statement (birds) Qs 1 and 3 98 Joint expert witness conferencing statement (birds), Q 5 and 6 25 species were irregular visitors whose presence depended on the availability of seasonal food sources, such as nectar and fruit. 99

[61] Of the five threatened or at risk species identified for special attention by Drs Powlesland and McClellan, the western weka is distributed through all vegetation types, albeit sparsely. The pipit occurs in open habitats, particularly the rock pavement, roadside, and low-growing grass and shrubland areas of the plateau. By contract, the rifleman is a bird of the forest, and found within the EMP site in the taller forest at the southern end ofthe plateau. 100

[62] Great spotted kiwi live in all forest types, but are most common in wet, cold, unmodified mixed podocarp beech forests and sub-alpine vegetation free of human disturbance. 101 Dr Powlesland referred us to surveys in 2008 and 2012 which estimated in the first case that six kiwi, and in the second two pairs, had territories that included the EMP site and adjacent forest. While the species is predominantly a forest-dweller, these surveys provided evidence that it also uses the scrub and pakihi areas ofthe EMP occasionally. 102

[63] Dr Powlesland also told us that fembirds spend much of their time in thick vegetation on or close to the ground, making them vulnerable to predation. He considered that low, dense vegetation interspersed with emergent shrubs in swamps, pakihi, rushes and tussock-covered forest flats was the most suitable habitat, but qualified that by indicating that no ecological studies had been undertaken of fernbirds in sub-alpine coal measure habitat of the type that occurs on Denniston. 103 The evidence suggested to us that for the full assemblage of threatened and at risk bird species to remain on site, the full range of habitat types currently provided by the area would need to continue, along with connectivity with adjacent off-plateau forest areas.

[64] The plateau is also home to a species of large snail found only on the Stockton and Denniston Plateaux, Powelliphanta patrickensis. We heard evidence on this species from three witnesses, Mr RP Buckingham and Dr B Lloyd, ecologists called by BCL, and Ms KJ Walker a scientist called by Forest and Bird. The joint witness statement on this topic was also signed by Dr PG Elliott mentioned above, who

99 Dr Powlesland, Evidence-in-chief, paragraphs [46]-[47] 100 Dr Powlesland, Evidence-in-chief, paragraphs [36]-[38] 101 Joint expert witness conferencing statement (birds), Q 5 and 6 102 Dr Powlesland, Evidence-in-chief, paragraph [64] 103 Dr Powlesland, Evidence-in-chief, paragraph [66] 26 provided evidence on predator control in his written evidence. These witnesses agreed that the plateau and the mine site are significant in RMA terms, and that for P. patrickensis the plateau as a whole and in particular the CPP site are very important. 104 They noted the genetic differences between the Stockton and Denniston populations and from a conservation point of view agree on the importance of these genetic differences and of conserving both sub-populations. 105

[65] These witnesses also indicated that the population had not declined during the last 5 years, and that in fact the snail counts had increased significantly. However, because of the small sample size, they were unsure whether these increased counts represented an overall increase in snail numbers. 106

[66] The witnesses all agreed that the distribution of P. Patrickensis is patchy, but that snail densities were relatively higher in and proximate to the CPP, and lower within the mine footprint. Notwithstanding this, wide differences remain between the witnesses on a range of matters, even in terms of the present situation of snails on the plateau. Different field and assessment techniques were used and we heard that this has in part contributed to the variability in population estimates. At the joint caucusing, the witnesses called by Buller Coal estimated that there were 508,949 snails in the total population on Stockton and Denniston Plateaux, and 14,564 snails within the EMP. Forest and Bird's witnesses put forward corresponding numbers of 403,543 and 18,722 snails. 107 The witnesses agreed that the differences in numbers were large and statistically significant. However, in subsequent evidence to the Court, Dr B Lloyd revised his estimates and, with 95% confidence, estimated the population range within the mine footprint at 0.7-6.4%108 of the total population. Ms Walker's estimates fall within this range. In cross-examination Dr Lloyd also acknowledged that despite the limited area sampled over the entire Stockton and Denniston Plateaux, and the assessment uncertainty, the entire population was at the very least more than 200,000.

[67] We are of the view that for the purpose of our deliberation the differences in numbers might have become less important over recent time. Knowledge of the numbers and distribution of the species, though still imperfect, has increased

104 Joint expert witness conferencing statement, Q5 105 Joint expert witness conferencing statement, Q9 106 Joint expert witness conferencing statement, Q5 107 Joint expert witness conferencing statement, Q5 108 Exhibit 56 27

considerably since 2005. In that year P. patrickensis was classified as nationally endangered under the Department of Conservation threat ranking scheme. According to the criteria then in force, the classifying panel were required to have the reasonable belief that the total population of the species was less than 5,000 animals. 109 Even on Forest and Bird's estimates, which we are not endorsing, the population is more than 80 times that figure.

[68] In overall terms, while protection of the habitat of any native fauna is a matter to be brought to bear as a matter of national importance in reaching an overall judgement under Part 2, and while there is still a lot of research that remains to be done on the species, our view is that the species as a whole is less threatened than it appeared to be in the earlier cases where its habitat was a significant factor in the Court's deliberations.

[69] The mine site contains some 6.8kms of streams draining to the Whareatea River (predominantly) but also to Cascade Creek. The coal processing plant will use water derived from the Waimangaroa River. Dr DJ Jellyman, an experienced fisheries biologist called by BCL, described to us a site-specific investigation of these and other Denniston waterways undertaken in March 2012. He surveyed some 15 sites, mainly within the mine footprint but also on the Conglomerate Stream and on the Waimangaroa River near the proposed water intake. 110 During this electro-fishing survey no fish were caught, but koura (freshwater crayfish) were present at all sites on the Denniston, at comparatively high densities, particularly given the significant altitude and low nutrient content of Denniston streams. 111

[70] In terms of the rivers to which the EMP will drain, Dr Jellyman told us that in all, some 15 fish species had been found, but only three of these had been found at elevations higher than 1OOm above sea level or more than 7 km inland. He noted that although koaro (a whitebait species) are a climbing species, only one example has been recorded on the Denniston Plateau despite intensive sampling. There are records of brown trout some 12 and 12.4km inland on the Waimangaroa River dating from 1992 and 1995. It was Dr Jellyman's opinion that these might have been the result of stocking the river. No examples have been subsequently reported. 112

109 Transcript, week 4, paragraph 108 110 Dr Jellyman, Evidence-in-chief, paragraphs [8], [9] and table 1 111 Dr Jellyman, Evidence-in-chief, paragraphs [11]-[13] 112 Dr Jellyman, Evidence-in-chief, paragraphs [15]-[17] 28

[71] Between the vegetation and the fauna come other invertebrates, an essential part of the food chain for many of the larger species that have been recorded. They also influence plant composition through soil aeration and decomposition, and by their feeding behaviour. We heard evidence on invertebrates from three witnesses. Forest and Bird called Dr GW Gibbs, a retired Associate Professor of zoology, while BCL called evidence on freshwater invertebrates from Dr JD Stark, a consultant freshwater ecologist, and on terrestrial invertebrates from Mr RJ Toft, an entomologist and insect ecologist.

[72] All these witnesses acknowledged that, in general terms, much work remained to be done on the identification of New Zealand invertebrates. Dr Stark noted that many freshwater insects can only be identified to a species level in their later larval instars or by examining late pupal or adult specimens, 113 and Dr Gibbs's opinion was that invertebrate fauna remains the least understood and least documented area of living biota. 114 The consequence of this is that it is difficult to estimate the significance of new species identified for the first time in recent investigations of the Denniston Plateau.

[73] In terms of aquatic invertebrates, Dr Stark described surveys he had undertaken on Denniston115 at:

(a) sites within the proposed EMP footprint;

(b) sites in streams downstream of the proposed development;

(c) sites downstream of abstraction from the Waimangaroa;

(d) sites in waterways unaffected by the proposed development.

[7 4] Dr Stark provided a table of 162 species identified during the survey, of which 130 were also found at sites unaffected by the proposed development. 116 Of the five species found at the mine site but not elsewhere, he considered that four would certainly be present in similar habitat elsewhere on the plateau. The remaining 29

species is known in the South Island, mainly west of the Alpine Fault and throughout the North Island. 117

[75] Of the 17 species found downstream of the proposed development, but not at sites unaffected by it, all are widely distributed in the South Island and some throughout New Zealand. Likewise, the two species recorded downstream of the Waimangaroa water take, but not at other sites, are species lmown throughout New Zealand.ll8

[76] For the purposes of assessing (later in this decision) what might constitute appropriate rehabilitation, we note that both species richness and species diversity decrease as streams become more acidic. Only 71 of the 162 species were found at pH 4.5 or less, and only 32 where the pH is 4 or below. 119 Further, exposure to heavy metal concentrations or sedimentation for more than limited periods reduces the number of species present.120 We also note that some species, while not exclusively associated with bryophytes, are often found in association with them, and that bryophytes may be slow colonisers of stream beds. 121

[77] The experts on terrestrial invertebrates, Mr Toft and Dr Gibbs, agreed that the Denniston Plateau is significant habitat for invertebrates in terms both of ecological factors and the criteria laid down in the relevant statutory documents. They also agreed that the mine site was significant because it contained representative habitats characteristic of the plateau as a whole. 122

[78] Further, they both told us in their evidence-in-chief that the plateau was exceptional for the comparative absence of introduced species, despite the history of human activity and human settlement. Dr Gibbs produced a table showing only 8 introduced species in a total of 536 identified through surveys undertaken by Dr Stark and Mr Toft, a survey of earthworms by Dr Ross, and a "bioblitz" undertaken by Forest and Bird during March 2012. Both Dr Gibb and Mr Toft considered the paucity of introduced species to be an indicator of the resilience of the native invertebrates found on the plateau. 30

[79] Mr Toft was questioned about a model then being put forward by BCL as a means of evaluating the environmental compensation/off-site mitigation offered for residual adverse ecological effects caused by its proposed activities. The model was subsequently withdrawn by agreement of the parties, but his responses remain relevant as to the degree of environmental loss and the value of the compensation offered. Mr Toft agreed that currently there is a lack of baseline data on the terrestrial assemblage of invertebrates, and that to establish such a baseline would take a long time. 123

[80] The significance of that answer needs to be considered in the context of two other pieces of evidence. Dr Gibbs and Mr Toft agreed that while the list of species so far discovered represents only a part of the entire invertebrate fauna that will occur, understanding of the fauna in this area is above average in comparison to most other areas or habitats nationally. 124 In estimating the ecological values present, ecological experts must make an informed professional judgement about what is present, and the effects of a proposal on that. Dr Gibbs's evidence was that monitoring the same population for ten years by the same method would never produce two years with identical results. 125 Certainty is impossible and professional judgement will still be called for. Our better than average present knowledge enables us to make a judgment of how what is proposed in terms of mining and mitigation will compare with what is there now. We note Dr Gibbs's response to a question from the Court that the very worst situation for biodiversity on the plateau would be the loss of it from 10% of the area. 126 In reality, as we outline when we come to predictions it will be rather less than that.

[81] There is little doubt then that many of the individual attributes of the flora and fauna of the Denniston Plateau are significant. This is, perhaps, somewhat reductionist and conceivably driven out of a perceived need to populate the now withdrawn biodiversity model. We did however also hear from several witnesses on the importance of the Plateau as an ecosystem, and that some areas within the Plateau were of greater significance than others. Aside from the Mt Rochfort RAP which we touch on separately, these include:

123 Transcript, paragraph 504 124 Joint experts conferencing statement, Q 2 125 Transcript, paragraph 515 126 Transcript paragraph [528] 31

(a) The "original patch"; an area of forest and wetland outside of the EMP that has not been greatly modified by fire; 127

(b) A little-modified area of approximately 146ha to the west of Trent Stream128 of which some 32ha falls within the EMP and is home to 3 rare or threatened plants (namely Peraxilla tetrapetala, Euphrasia wettsteiniana, and Pseudowintera travserii);

(c) "Sticherus Ridge" (being the sandstone bluffs that line either side of the Barren Valley. Whilst the valley itself is highly modified, the bluffs were identified as rare landforms within the Plateau and a highly significant environment that supported a range of bryophytes, the daisy Celmisia similis, and Sticherus tener; and

(d) The areas of wetland and fen in the vicinity and within the proposed site of the coal processing plant, which in addition to the rare vegetation types included particularly high densities of P. patrickensis.

[82] Whilst the EMP is still subject to a separate concession process from the Department of Conservation, the very fact that the Plateau is within stewardship land within the conservation estate is a relevant consideration (but we wonder at the time­ scale for consideration of what follows). Ms Martin drew our attention to a statement from the Parliamentary Commissioner for the Environment which describes stewardship land as not so much a commentary on conservation value but rather a "holding pen" pending a decision as to whether it should be added to Schedule 4 [Crown Minerals Act 1991] or otherwise disposed. Ms Martin went on to observe that 92% of the Plateau was in public conservation land and, despite some 6% of the Plateau being classified as cleared or otherwise disturbed, was of the view that it was "arguably the best example of a full range of patterns and processes within this environment type". 129

[83] In the same vein, a number of the Forest and Bird I WCENT witnesses opined that the Plateau presented a unique combination of biotic and abiotic factors. 130

127 .•• -· . ··-·~ Transcript, week 3, page 76 ''st.f\L OF r,'''-. 128 Transcript, week 3, page 111 A....~

0Vr couP.:\'~(<};/;\ ,.., _._,,.~<4 -~· 32

Without however without wishing to derogate from the value of that statement on its face, this could be said of many, if not most environments. More pertinently, Mr Overmars pointed to "an acceptance that Brunner coal measures as a whole is an endangered ecosystem, because of the decline in extent and in ecological functioning." 131 Adding to this, Mr Overmars told us that 19% of the Plateau is within a Recommended Area for Protection ("RAP"):

The Mt Rochfort RAP (1323ha) was considered at the time it was formulated to comprise an altitudinal sequence of vegetation on Brunner coal measures and included adequate representation of the main vegetation patterns of the Denniston Plateau, on current knowledge c.286ha is on Brunner coal measures between 600-900m asl could be considered representative of the main vegetation patterns of the Denniston Plateau ( 19% of 1492ha).

This level is just below the minimum 20% level generally accepted for representativeness (e.g. national priority 1 for protecting rare and threatened indigenous biodiversity on private land). 132

[84] Whilst the Mt Rochfort RAP had originally included 146ha encompassing the Trent and Conglomerate Streams, this was removed from the RAP, we heard, because of the coal resource in it. 133 We also heard that the status of the RAP, like that of the wider stewardship land, had not changed in several decades. 134

[85] Aside from the status of the Plateau within regional and district planning documents (which we address later), we also heard that the Department of Conservation has since developed a range of other ecological classification and management tools and not surprisingly, given the earlier RAP classification, many of these had also recognised the importance of the Plateau. 135 Similarly we heard that the Plateau wetland was of a quality that merited protection under RAMSAR, a convention for the protection of world cultural and natural heritage, albeit that its limited aerial extent would disentitle it to registration. 136

[86] Whilst some these frameworks and assessment systems have differing objectives they do reinforce the importance of the Plateau (or parts thereof) within the broader ecological and biodiversity context. As already observed, all of these matters serve to underline the importance of not only the individual aspects of ecological

131 Mr Ovennars, Evidence-in-chief, paragraph 64 132 Mr Ovennars, Evidence-in-chief, paragraph 77 133 Mr Overmars, Evidence-in-chief, paragraph 69 134 Mr Ovennars, Evidence-in-chief, paragraph 64 135 Dr Elliott, EIC paras 88-90; Mr Overmars EIC paras 17, 60-64, transcript p 693 136 Emeritus Professor Sir Alan Mark, EIC, paras 72 and 81 33

components of the Plateau, but its collective function and importance. It is not however our place to rule on matters such as RAMSAR eligibility or status. We recognise the potential loss of biodiversity that would occur across the Plateau and within the wider Brunner coal measures despite the proposal to rehabilitate the disturbed areas of the EMP. Equally, the relevant authorities have not resolved to move the plateau from its "holding pen" status after a considerable period of time. The area has not been offered Schedule 4 protection. This is a mater we further consider under Part 2.

[87] Overall however, there can be no doubt of the high level of significance of the Denniston Plateau for its vegetation and as habitat for native fauna in a variety of forms and for the diversity of the plateau as an ecological assemblage. We are conscious of the need to proceed with considerable caution before giving consent to any proposal that would endanger that significance.

Predation effects on and in the vicinity of the plateau

[88] As we have indicated, Buller Coal is offering a predator and pest control programme over a wider area of the Denniston Plateau (some 4,500ha) as environmental compensation for residual adverse effects after all other remediation of the mined site has occurred. We note that the 4,500 ha predator control area extends beyond the plateau as defined by Dr Mabin. It is part of Forest and Bird's case that there is little evidence of exotic predators on the plateau, and that the proposed predator control programme is of no benefit to the flora there and of no or uncertain benefit to the fauna; therefore, they submit, it should have little influence on the final decision.

[89] There were three basic elements to Forest and Bird's case in this area, which all require a judgment about the environment on which the EMP will be imposed. These three elements are:

(a) That the relevant exotic predators are few in numbers on the Denniston Plateau and that the native species are not depressed by the predators targeted; 34

(c) That the predator control programme BCL intends to provide does little more than duplicate existing programmes and offers little additional benefit.

We deal with each of these propositions in tum.

[90] BCL and both appellants accept that rats, mice, stoats and possums are present both on the Denniston Plateau and in the broader area around the plateau over which BCL intends to provide control. 137 Dr JP Parkes, a scientist with extensive experience in predator control, was called by BCL. He gave evidence about 3 surveys conducted in the area in February, in March-April and in July 2012, each using a different methodology (chew-cards, wax tags, and tracking tunnels). Evidence was found of only one possum and one stoat, and mice were rare in all habitat types. However, while the chew-card and wax-tag surveys suggested that rats were rare on sandstone pavement, both showed moderate densities of rats in forest habitats on the plateau itself as well as in the surrounding area. 138 Although no rats were detected during the tracking tunnel survey, Dr Parkes and Dr Elliot noted that the tracking survey did not include many forest habitats. 139

[91] The extent to which 2012 predator levels are typical of the plateau is uncertain. It was Dr Parkes's evidence that in general some pest species exhibit large population fluctuations, increasing particularly in response to masting events, that is in years when trees produce a much higher than normal number of seeds. The abundance of rats is likely to tum on masting events in beech species with the heaviest seed, while numbers of mice may be influenced by masting in all beech trees, and possibly the Chionochloa species present in the area. 140 Stoats, which prey on rodents, are also likely to be more populous in masting years. In cross-examination, Dr Parkes noted that something other than masting may be determining rat numbers on the plateau. He expected rats to be rare all over the plateau in a non-mast year, yet they were found in forested areas in moderate numbers. 141

[92] There is clearly some effect of predators on native populations. Ms Walker, for example, told us that she had examined 1,093 shells collected in plots during 2012. Of the 923 where the cause of death was identifiable, some 21% showed evidence of

137 ,,.._.-·---":..,.,, Joint expert conference statement (predators) Q2 ~ ~~~ ~.~~ 138 Dr Parkes, Evidence-in-chief, Appendix 3 and Transcript, week 4, paragraph [211] ~'((' 139 Joint expert conference statement (predators) Q14 140 .11J r.·.·"'}-)' d'( '\ Dr Parkes, Evidence-in-chief, paragraphs [17] - [19] 141 \}/$.''Ot"l~ (.'!:~1 o l Transcript, week 4, paragraph [213] - ~[Y~lf~.~~r"' ~ "~'·'\}; ., j -;;.·...... • ~. , ::~\.~i: .. '·~~J I ;:1 j t, C, ~l./:. ·:.. 1.<~_.:/~'t•r.•·"'' ..., • / r-:(~1 I ;t.. ~.{. ..,~. . (•~ / \, .. · ~ :% .~~/~ ... ~~~~~.:S/ 35

exotic predation.142 Dr McClellan's evidence was that South Island rifleman is a hole nester, and that females and chicks of the species were most vulnerable to mammalian predation. 143 Given that it is also a forest dweller, a moderate density of rats in the forests on and off the plateau constitutes a threat to the species.

[93] In terms of the resilience of the native species, and their long term survival on the plateau, we note the view of a number of Forest and Bird's experts that the plateau provides a safe haven, and that their population has reached the "carrying capacity", that is the maximum number that the resources of the plateau will support. We consider that Dr Parkes made some pertinent comments on this theory:

[In] an ecological sense [carrying capacity] means the natural limit set by resources for a population in an environment, and that can only happen where there is no predation, and clearly, on the plateau we have all of the usual suite of predators and rats and mice, possums and stoats, perhaps feral cats that are eating each other and eating some native animals .. . I mean it's just a nonsense that the native populations can be at carrying capacity. What happens, of course, under predation, is that you can be at lower densities but quite at some equilibrium and that equilibrium can be very close to carrying capacity ... or it can be at zero.

He added that equilibrium can be stable or unstable, 144 and that in the case where a species is known not to be resilient, as is the case with kiwi, it can be in trouble in the event of a bad year. 145

[94] We found Dr Parkes to be a careful and objective witness, accepting reasonable hypotheses put by opposing witnesses. We note that he accepted that changes in populations occur more slowly at higher altitude and more infertile sites. 146 Unfortunately in some contrast Dr Elliott appeared reluctant to accept evidence, even of witnesses called by Forest and Bird, when it did not support his position. 147 Dr Parkes expressed himself very carefully in the statement produced by the joint expert witness conference. He was unclear as to whether the evidence of predation will be having an effect on snails at a population level. He was also less certain (than Dr Elliott) that impacts of predation will be inconsequential for the native fauna on the plateau. There is no data on how severe the impacts on these fauna might be. Dr Parkes's considered opinion was that, while rodent and stoat irruptions on the plateau

.,., --~·~w~ 142 Ms Walker, Evidence-in-chief, Table 3 /s\:.f\l OF~ 143 Dr McClellan, Evidence-in-chief, paragraph [85] ~· ---. Iii(:'\\ 144 This seemed an odd expression but we infer that he meant that the quality of equilibrium can be fragile at times. 145 ~ ~· . Transcripts, week 4, paragraphs [199]-[200] t- , ~) ~J~ 146 Transcripts, week 4, paragraph [200] \ .\ 147 ~ ~TI-\~.,~~~~fiJ. 1 ~: \ Transcripts, week 4, paragraph [256] (on Dr McClellan's evidence) ...... ~-:t:) J\-,!\;;~:._l~f'\t_J.~'{i·r ll·lr.~-;1ti:\,V)) '-<·- .·.' ·i ,..Q ;.,." ''~~l~~i~V.n~:-:·t' }...J , : ~ f"NJ•I·t;,;;~l(}lf.'71l1 / \. \,; '' ;q~~ /~\ / , ~~co~"~'-;/ -··-~ 36

might be less extensive than elsewhere, they would still have significant impacts. 148 We consider that to be the best assessment of the current situation on the plateau available to us.

[95] Forest and Bird also contend that there are existing programmes which either provide or will provide predator control. One such programme is conducted by the Animal Health Board ("AHB"), which undertook aerial drops of 1080 poison on the plateau in 2005 and 2009, covering wide areas stretching north from the Buller River and inland from the edge of pasture to Cascade Creek. Dr Parkes's understanding was that another control operation is planned for 2015-2016 if possums have recovered and funds permit. He also understood that the area was a low priority for the AHB. 149

[96] Dr Parkes noted that the AHB programme is directed to the prevention of bovine tuberculosis through the control of vectors. It is controlled by the need to limit the possum population, and is not necessarily responsive to environmental triggers such as an increase in rodent population or to masting events. 150 Dr Elliott agreed with Dr Parkes that there was some uncertainty in the plans of the AHB for TB control on Denniston. 151

[97] Forest and Bird witnesses were confident that if additional predator control were required, it would be undertaken by the Department of Conservation. Dr Elliott told us that over the past three years the Department had established some 941 ecosystem management units, and was in the process of prioritising them to deliver cost effective protection of the full range of New Zealand ecosystems. 152 Two such management units cover 1,273 ha of the 4,500 ha over which Buller Coal intends to provide protection. 153 Dr Elliott cited from evidence prepared by Dr Leathwick concerning a proposal now abandoned to dam the Mokihinui River (but not given in open Court due to that abandonment), to the effect that that the intentions of the Department are to implement management of the "top 400 units" over the next four years. Relying on discussions with Dr Leathwick, he indicated that while the Denniston management units were currently lowly ranked, the present rankings are

148 ",,,.. "·""' Joint conference statement (predators) Qs 3 and 4 /~ S\:J\1~ ()f ti~ 149 Dr Parkes, Evidence-in-chief, paragraphs [25.1]-[25.2] "''' ...... - ' <" 150 Dr Parkes, Evidence-in-chief, paragraph [27.2] 151 ,. ,-~ Joint experts conferencing statement (predation) Q7 D< Elliott, Evidonoo-io-oh!of. P""sroP"-' [88)·[89) ' ~~.~)@ (: ."'153 ~

only preliminary, and are likely to be amended in the foreseeable future to increase their status. 154

[98] Two exhibits produced during the hearing reveal a proposal within the Department of Conservation to raise the ranking of the Denniston unit from 611 to 84. We use the word proposal deliberately. Dr Leathwick himself provided evidence to the Court to which he attached an email sent to Dr Elliott. 155 In that email he outlined discussions with the manager for the Planning, Monitoring and Reporting team within the Department, and recorded the agreement of Dr Leathwick and Dr Wright "not to roll the changes out." It was agreed that the changes should be continued into the next ranking update planned for mid-2013. Dr Leathwick said that he "expected' the high ranking given to the Denniston ecosystem management system unit to be carried forward into future rankings.

[99] Under cross-examination, Dr Elliott said that he imagined that Dr Leathwick's proposed changes will be peer-reviewed before new rankings are rolled out.156 Further, he said that he understood that "the bigger wigs" had signed off on the notion of funding the top 400 units, but he had seen no formal document to that effect. 157 Those answers have to be viewed in the context of departmental efforts to save $9M per year, including a review of some 1,200 operational roles, which Dr Elliott acknowledged to be the current situation. 158

[100] In terms of the environment on which the EMP will be imposed, we conclude that predators are certainly having an effect on native fauna on the plateau, though the extent of that is not completely clear. There is no certainty that appropriate predator control will be funded by some organisation other than Buller Coal.

1 c,t.~L-Or/;'.. s4 Dr Elliott, Evidence-in-chief, paragraphs [90] & [92] .....,+.~ ~ -- /~<"'\ Iss Dr Leathwick, Evidence-in-chief, Appendix 4 1 6 ~ • s Transcript, week 4, page [273] ~~-.(~~~~{,{:~ ..\'s 7 Transcr!pt, week 4, page [276] '\~~fZi ,;~ft\\ ~ Iss Transcnpt, paragraph [28] ..-· ,~f~?' ~~ffi.:~~ :''. -;.l-"2 !~~t .. ;~;$t'~ ''~~~l ~; 0. 'f;I·~~&'Jr;f!~k'\' I J,., . ~A ~~.~ .. ;t~-~~-1 ·'\"'" '/!.-" "-, / •\ " ' ~<'Yt'icmj~{~~~/ ~-...... ,...... 38

S104(1)(a)- The actual and potential effects on the environment of allowing the activity

Economic and social effects

[101] Mr GV Butcher, an economic consultant, was called by BCL. He based his assessment of the economic impacts of the proposal on information supplied to him by BCL and its consultants, Marston Mining Limited. 159 Amongst the assumptions he made on the basis ofthis information were:

• that the establishment of the mine would take approximately one year; 160

• that over the next four years approximately 4M tonnes of coking quality coal would be derived from the run of the mine production of 6M tonnes; 161

• that the international price for coking coal would be US$240 per tonne; 162

• that the current exchange rate of approximately NZ$1 to US$0.80 would apply.l63

However, he recognised the possibilities of fluctuation in the latter two assumptions and indicated considerable variations these could produce in the overall benefit to the New Zealand and West Coast economy from the mine operation. Mr Butcher also assumed that around 85% of the employees at the proposed escarpment mine would live in the Buller District.

[102] Mr Butcher had also assumed that when it reached full development, the mine would employ 225 people, and over its lifetime produce 1,082 job years. Total wages paid when the mine is fully operational would be around $26 million per year,164 with an average wage of around $117,000. Based on the above assumptions he initially calculated that the project would have a net present value ("NPV"), that is a surplus of revenue over expenses, discounted because some of the receipts will be six years away from beginning the operation, of $467M. This sum comprised payment to DOC

159 Mr Butcher, Evidence-in-chief, paragraph [22] 160 Mr Butcher, Evidence-in-chief, paragraph [15] 161 Mr Butcher, Evidence-in-chief, paragraph [15] 162 Mr Butcher, Evidence-in-chief, Appendix IV.l 163 Mr Butcher, Evidence-in-chief, Appendix 11.4 164 Mr Butcher, Evidence-in-chief, paragraph [2] 39

of $9M, payment of royalties to the New Zealand government of $11M, tax to the government of $125M, and a return to shareholders of $321 M. 165

[103] Forest and Bird called an economist, Mr PWJ Clough. Mr Clough noted that 92% of Buller Coal's shares were overseas owned, and he and Mr Butcher agreed that that proportion of the profits could not be regarded as a benefit to New Zealand. The economists also agreed that the payment to DOC should not be regarded as a benefit, but rather was compensation for acknowledged environmental damage.

[104] Mr Clough was critical of Mr Butcher for assuming too high a probable value for the coal, and considered a more likely return was in the range of US$165- US$200.166 He referred to a table in Mr Butcher's Appendix A4 and noted the volatility of the price of coking coal. For over half the period 2007-2010 the spot price was below US$192 per tonne and for nearly half the time below US$165 per tonne. 167

[105] Mr Butcher's evidence at the hearing was that, all else being unchanged, the project would be at break-even point if there was a 41% drop in price, and in the event of a rise of20% in costs, a reduction of27% in price (US$175/tonne) would bring the project to that point168. He produced a table showing the effect upon the project of various changes to the exchange rate and the price of coal. 169 We note that while reduction in coal price would chiefly affect return to shareholders, profitability has an impact on the tax paid, which forms a proportion of the tangible economic benefit to New Zealand.

[106] Mr Butcher's table was as follows, the NPV figures representing NZ$ millions:

Exchange Rate COAL PRICEUS$/tonne US$ -NZ$1 240 200 160 140 0.80 202 139 77 51

0.75 213 149 83 56

0.70 230 161 91 61

S{J;t~~\ 165 Mr Butcher, Evidence-in-chief, Appendix IV, Table A4 1 *' 166 , ~<" Joint Conference Statement, Economists, Q7 167 71 £t.... til Mr Clough, Evidence-in-chief, paragraph [74] ~, •·l.,.)>'•'l<, 1• 168 T ' t 391 392 Q"J r.,v~,..,f:s.~-tf?.:\ \ ranscnp, pages - r;;,;; 169 z:Z $ Mr Butcher, Rl, Table 4 (')"'~*~·> c•~;.; 't'ttiV~;~ ,,,.,h~ ~ "'l.-:';: .: :;;, " \: ..;. '"/ 1"1&·· '-:! ~0 '4-L·J...... i!I'J-~,J:~.,-~.. j ~ ''-.. ~·~~lt:!})~Y·...,Y·,~'e·;•~·' 1\;/j1";-~ . .'41k. ;...._ __..?'/<:~· / ~tv;- CQU\~\ \~;/ ~ ..... ~_ ...... ,...~'" 40

0.65 250 175 99 67

Mr Butcher considered the most likely result of consents would be benefits in the central range, that is the range of $83-161MY0 Mr Clough estimated the NPV to New Zealand as $76M. 171

[1 07] We note that if the mine does receive consent, and a decision is made to implement the consent, the royalties to the Crown, and the funding of the DOC programmes would still proceed, and the extraction and processing of the coal would still require the employment of around 225 people at an approximate cost of $26M annually.

[1 08] Mr Butcher and Mr Clough agreed that the benefit derived from the jobs created should be valued by the opportunity cost, that is the amount by which the wage paid is higher than the employee would otherwise receive for his/her labour. 172 Mr Clough, as we have seen, estimated that figure at $34M, based on the difference between the average wage paid at the mine and the New Zealand average wage. We think Mr Clough was realistic in not expecting the recruitment of the skilled workers the mine requires to come from the ranks of the unemployed. However he conceded that there might be a shuffling upwards within the labour market, resulting in an increase in the net total of people employed in New Zealand, and that too seems realistic173 In the context of unemployment figures in the June quarter referred to of 162,000 (seasonally adjusted) we think that is likely too. In consequence the actual benefit of the jobs created may be rather more, in as much as they are likely to be additional jobs in the New Zealand economy, not jobs transferred from one source to another.

[109] Mr Clough was also critical of Mr Butcher's failure to provide an economic analysis of the adverse effects on the environment potentially caused by the proposed mine. He said that such matters as the pollution of air, soil and water, loss of indigenous vegetation and animal life, displacement of recreation and tourist activity, visual intrusion and noise disturbance all affect the consumption choices of people and their wellbeing in the community. Hence that Mr Butcher's evidence needed to 41

be interpreted in the light of the exclusion of such effects from his evidence and the economic principles (such as scarcity value of rare species) that could apply to these non-market attributes. 174

[11 0] Mr Butcher and Mr Clough were however agreed that non-market valuation, that is the attribution of value to effects not observed in market prices, was fraught with difficulties such as the experimental nature of some of the methods used, and reliance on hypothetical questions which might give unrealistic answers. 175 Mr Clough's evidence fairly acknowledged that the techniques used to arrive at non­ market valuations were time-consuming and resource-intensive, and that the variable methodologies used in New Zealand do not provide a reliable set of indicative values. 176

[111] Mr Butcher has not attempted to deny that the project will result in losses to the natural character and ecology of the mined area and to its surrounding landscape. What he said is that the Court has been provided expert evaluation of what those losses. are from witnesses with expertise in these areas, and having read their evidence and heard cross'-examination, is in the best position to weigh up the effects that these witnesses anticipate alongside those for which he is able to calculate (within a range) financial consequences. 177 We acknowledge that as a correct and appropriate view.

[112] The consensus of witnesses on economic and social subjects was that a significant proportion of those employed in the mine would be recruited from outside the Buller District. Ms D Buchan called by Forest & Bird and a director of a consultancy company which specialises in producing social impact assessments, told us that in June 2012 there were only 50 males under the age of 40 in Buller receiving the unemployment benefit. 178 Mr Bohannan indicated that the skills needed in open cut mining were rather different from those in underground mining, so that those recently made redundant at Spring Creek Mine do not form a ready source of recruits. 179 Mr JT Baines, an expert in social impact assessment called by BCL, also expected the workforce to comprise mainly new residents to the Buller District. 180

174 Mr Clough, Evidence-in-chief, paragraphs [102]- [103] 175 Joint Conferencing Statement, Economists Q1(b) 176 Mr Clough, Evidence-in-chief, paragraph [64] 177 Mr Butcher, Evidence-in-chief, paragraphs [35], [43]; Rebuttal paragraph [14] 178 Ms Buchan, Evidence-in-chief, paragraph [30] 179 Transcript, page 200 180 Mr Baines, Evidence-in-chief, paragraph [18] 42

[113] Mr Baines and Ms Buchan were unable to agree on the proportion of new recruits who would choose to make their permanent home in the district as opposed to driving or flying in and out for the periods when they are working. Mr Baines considered a figure of 85% choosing to move to Buller was a reasonable estimate. For this he relied on the applicant's stated intention to have a resident workforce, historical data from Solid Energy, 80% of whose workforce were resident in the District in 2010, and on an informal survey he had conducted amongst the applicant's existing workforce. He also noted Mr Butcher's assumption of an 85% resident workforce. 181 Ms Buchan's view was that the locally-based proportion of the workforce would be 50% or possibly less. She noted that for those recruited towards the end of workforce expansion, the prospect of employment with BCL might be for no more than 3 years, and questioned whether employees would be willing to move with families for such a short period. She also considered the agreed shortage of affordable housing in the district a relevant factor. 182 Both witnesses agreed that there is a strong relationship between the number of employees living locally and the social effects; the greater proportion of employees living locally, the more the associated positive effects. 183

[114] One of the effects of the proposed escarpment mine would be the creation of additional jobs outside the mine. This would occur in two ways. BCL would purchase equipment (explosives etc) and services (freight and transport services, for example), necessary for its operation from suppliers inside and outside the district. Further, in as much as the jobs created at the mine are highly paid, it is likely that an increase in household spending would be generated, creating a demand for goods and services supplied to families. Mr Butcher estimated on his assumption of 85% of the workforce living locally, that there would be an additional 190 jobs in the Buller District, and 251 in the West Coast Region resulting from the mine operating at full capacity. 184

[115] The extent of additional economic activity in the Buller District would be influenced by the number of the workforce who reside in the district permanently, but from a New Zealand-wide perspective, money spent elsewhere by workers who drive or fly in and out of Buller would contribute to the generation of economic activity and

181 Ms Baines, Evidence-in-chief, paragraph 46, Rebuttal, paragraph [19] 182 Ms Buchan, Evidence-in-chief, paragraph [42] 183 Joint Experts Cpnference Statement, social impacts, Q 1 184 Mr Butcher, Evidence-in-chief, paragraph [23] and Table 28 43

employment in the place where it is spent. On a national basis its contribution to employment would be similar.

[116] However, the proportion of resident workers will make a difference in a number of other areas. Mr Baines told us that, assuming the proportion of BCL's workers who are partnered is the same as that shown for the Buller District: 200 (60%), and assuming the average number of persons per household is also the same, and 85% resident workforce would, with the indirectly induced additional employment, result in 803 additional residents in the district. 185 Mr Baines considered that if the effects of this increased population are well managed, they will be beneficial in terms of contributions to local organisations, such as schools, and cultural and sporting organisations, an increasing number of ratepayers to support local infrastructure, and increased expenditure to support local business and possibly increase the variety of goods and services available. 186 He accepted that a reduction in the proportion of the workforce who were permanently resident, would reduce but not eliminate these benefits. 187

[117] There are two areas in which it is acknowledged that an influx of new residents might create difficulties, at least initially; namely housing and early childhood education. Mr Baines' evidence was that at present, housing in the district is virtually at capacity and becoming increasingly unaffordable for some. While he noted that the increase in demand would be beneficial for some (those who own property either for their own occupation or for rent), he wrote: 188

... these rising costs will offset some of the advantages of higher wages in the mining sector, and lead to further displacement of the District's low income households - to cheaper and generally poorer quality housing in Westport ... or to cheaper places elsewhere in New Zealand. Other flow-on social effects from the pressure on housing were described during the assessment interviews, and include young adults unable to leave the family household and set up independently, dysfunctional households staying together longer than they should ... and elderly or unwell people living in unsatisfactory cold and damp dwellings.

[118] Nevertheless, Mr Baines considered that the prospect of an imminent demand for housing created by consent to the proposal would create opportunities in construction and cumulatively lead to long-term improvement in the District's

;;s~:~L-·OF~ 185 Ms Baines, Evidence-in-chief; paragraphs [47], [48] and Table 1 ~ - ----..._:1 ~·~'\ 186 Mr Baines, Evidence-in-chief; paragraph 19] 187 , Mr Re?uttal, [31] ,J~...., '·iJ~/"\ '·;, 188 Ba~nes, ~arag~aph rr ~~{../~".;_,11 ~h. (;'.l . Mr Bames, Evtdence-m-chtef, paragraph, paragraph [58] ~ 0( \~~,,,!;', lm ~ i ""-- • tl;, -<:( I ___.:_) ~ • • ·,·~- f .·~·~ ~ \.i ... _, :::-, '!~';::!:·' ';.; J.2<: J ~ 1.{;~-~< ·..Y; 4:;~ ---0\/

housing stock. 189 He stated that during 2011, 80 residential building consents had been applied for (as opposed to 40 per year a decade ago), and referred to land being offered for sale by the Roman Catholic Church which had the potential to produce up to 100 residential sections. 190

[119] Ms Buchan indicated that in her discussions with local people, the shortage of affordable quality housing was the most prominently expressed concern. 191 On the basis of Mr Baines' evidence and given the lack of any stated intention on the part of Buller Coal to provide housing she considered the effect of consent to the EMP on the current housing situation would be materially adverse. That would remain the case, even if a high proportion of workers chose not to reside locally. They would still require accommodation when on shift. 192 There is an issue here, although not constituting an effect more than minor. We do consider that BCL's mitigation proposal (to encourage the workforce to reside in the district by paying the first quarter's rent, or by the provision of two houses which staff can occupy until they find their own accommodation), does not amount to much. 193

[120] Mr Baines thought it appropriate that BCL should consider contributing to any community initiative to alleviate the social effects of high rents and scarce accommodation. However, his suggestion of sponsorships for social agencies such as Homebuilders or Women's Refuge appeared to us to have an effect only at the margins ofthe situation. 194 We note his comment that the supply-demand balance in the district's housing sector is likely to remain high for at least 2-3 years. 195

[121] Mr Baines also gave evidence that pre-school activities in the District are also insufficient. He noted the intentions of Westport Kindergarten to provide an additional 50 places in a building currently under construction, and again during the hearing told us that there would be a further 50 places at a centre shortly to be opened known as Leaps and Bounds. 196

189 Mr Baines, Evidence-in-chief, paragraph [60] 190 Transcript, page 500 191 ~· .. -, Ms Buchan, Evidence-in-chief, paragraph [56] ··'~ Sli:.l\l OF r/;_"-.__ 192 Ms Buchan, Evidence-in-chief, paragraph [61] -~-~ __.------.. <<' \ 193 Ms Buchan, Evidence-in-chief, paragraph [57] A.?: r~i:-- ,-:-. ·. . 194 Mr Baines, Evidence-in-chief, paragraph [90] 195 r ~\~¥~l~~: !2 Mr Ba!nes, E~idence:in-c~ief, Table 3. . ;;£! t:L'I~t~':2f1t{ri~ ~:(' \ 196 Mr Bames Evidence-m-chtef, Appendix 3, C7 and Transcnpt page 499 ·- ·' ·1· ·':rr1 "'d ! ::\:J \ ·· ~~)1. v rr v ;... J ~ · (;;) ·-;ji:·.l)'i~J~~.fJ; 1/5) --t~ ~ . .!;·>r~C;<,C-"""'' ; VI . /1;0: >----.-/ ·\"' ,! tVt COU'r\1 ~/ ~---... -""' 45

[122] Mr Baines estimated that on the basis of an 85% residential workforce at BCL there could well be between 70 and 83 new pre-school children, 197 and even with the additional capacity referred to above, waiting lists for places are not likely to be eliminated as there are already 126 children on the Westport Kindergarten waiting list. But he considered that the likely increase in demand for pre-school education created opportunities for private provision. 198 Both witnesses agreed that the gap in the provision of pre-school education might act as a disincentive for BCL employees to move their families to the district. 199 That would ease the pressure on pre-school education, and possibly housing, but it would also reduce the benefits of increased household spending in the district.

[123] Mr Baines and Ms Buchan agreed that there are adverse social consequences if a large proportion of a workforce is non-resident. Mr Baines wrote of the stresses of split households?00 Ms Buchan added to the list family breakdown, increased traffic accidents and inflated prices for rental housing. She cited an Australian study of mining towns which identified among the social impacts of a non-resident workforce:201

• family stresses and breakdowns caused by long absences;

• community fragmentation as s result of the lack of integration of non­ resident shift workers into the community;

• physical, mental and social health problems amongst the workforce;

• increasing vehicle accidents as a result of long shifts and the amount of time spent commuting;

• a rise in criminal and anti-social behaviour; and

• inflated housing prices.

-"· ··· ---~0. 197 Mr Baines Evidence-in-chief,[65], Table 2 ~ Stf>.L Of t.';;'\ 198 Mr Baines, Evidence-in-chief, paragraph [617] ~' '"<' , 199 Joint witness conferencing statement (social impact) 9 October 2012 page 4 200 I; -~ ..-1""1 ,~~ \ Mr Baines, Evidence-in-chief, paragraph [50] 201 tn ~J~-~\.. "'"~l}~ft.[.m·%~ Q' Ms Buchan, Evidence-in-chief, paragraph [52] ~ t··f ·~·~H~r it :~ i . ~ •. \\,<: .f.~~l- jl~: ;·f;' c:> .,,, ifii', ·' ~.~ •y;..:!)/ J~.., ~ %i ,...._-:.·IT~"a~.\3,..-f'l \ '\;t./ 1;1):) • ~'\' .. ~IV{ COU\~1 "~~-·" -~ 46

[124] Mr Baines did not consider the impact would be as severe as Ms Buchan suggested, even if there were a greater proportion of non-resident workers than he anticipated. He noted that in Australian towns the size of Westport that were the subject of study, there were around four times the proportion of non-resident workers experienced by Westport. He noted the Police report that Westport has not experienced any significant increase in crime as the proportion of non-resident workers had increased in recent years. He also indicated that the assessment interviews he had conducted did not lead him to conclude that Westport was experiencing any loss of community.202

[125] We are more inclined to Mr Baines' view, though we consider that adverse consequences in the housing market could be noticeable, and note the common evidence that families will experience stress. These are matters that need to be brought to bear in the overall outcome, along with the economic benefits the project will bring.

[126] In the bigger picture, we consider that it is important to distinguish between economic benefit to the company, and economic benefit to the West Coast and to New Zealand. The net present value resulting from a benefit/cost analysis is the economic benefit to the company and its shareholders. It is not the economic benefit to New Zealand. The economic benefits to New Zealand are wages, operational expenditure, services expenditure, tax, possibly some environmental expenditures, royalties, and some other items of more minor nature. The price of coal affects the profitability to the company that does not greatly affect the economic benefit to New Zealand other than (mainly) in relation to royalties.

[127] Provided the project proceeds (which may depend on BCL perceiving a positive NPV), economic benefits to New Zealand will accrue. Otherwise, fluctuations in coal price are of very limited interest in the context of matters that we must consider. Sizes of benefit was the subject of considerable debate and speculation that to some degree can be considered informed speculation. If the international coal price drops to a level where BCL decides not to proceed, there might be no environmental effects other than those occurring prior to cessation (assuming a decision is made to cease mining after it has commenced). If the international coal price supports commencement and/or continuation of the project, it would go ahead, and economic benefits to New Zealand would occur. If it is

202 Mr Baines, Rebuttal, paragraphs [37], [38] 47 sufficiently high, the same or greater benefits will occur and the company will prosper. In summary, our main concern must be that if the project commences but subsequently stops, that effects on the environment will have been adequately avoided, remedied or mitigated. If we decide to grant consent, this will become a matter of setting appropriate conditions. Securitisation of performance of conditions would become relevant in the event that there was any risk that the consentholder might cease operations and disappear.

Physical effects

[128] If consent is given to the EMP, 157 ha of the mine site and 11 ha of the CPP, which currently have moderate to high natural landscape values, high amenity values, and ecologically significant values for both the ecosystem as a whole and a number of individual fauna and flora species, will be transformed into a site of industrial activity. The further 18 ha over which roads, pipelines and other forms of infrastructure will be located would spread the influence of industrialisation over wider areas ofthe plateau. A total of approximately 186 ha, or 10% of the plateau proper, containing significant indigenous vegetation and providing habitat for indigenous fauna, would be removed and would curtail connectivity to adjacent forest ecosystems. The removal of 6 million tonnes of run-of-the-mine coal, and the creation of an engineered landform to contain the potential for acid mine drainage would inevitably produce a final landform that is different to that which presently exists?03 Further, some 6.8km of water courses would be removed.

[129] The ecological and landscape witnesses called by BCL properly agreed that during the course of mine operations, and for some years beyond, the adverse effects would be significant. Mr Brown and Mr Craig accepted that during the operation of the mine, there would be moderate to high adverse landscape effects impacting on the plateau's aesthetic coherence, recreational use and sense of isolation and solitude. They suggested it would be more than ten years before these effects becAme low or low/moderate?04 Mr Kessels, an ecologist called by the respondent councils, agreed that in the short (0-10 years) to medium (up to 50 years) term, ecologically signif!.cant eco-systems, habitats and species would be lost, as would important sites for rare 48

vegetation types and threatened plants, a significant portion of the population of Powelliphanta patrickensis, and significant habitat for avifauna and lizards.205

[130] In the context of such significant temporary effects- and we note that the word temporary includes a range of time-scales - much would tum on the willingness and ability of BCL to rehabilitate (and rehabilitation we note is not a one-off activity) the site such that the final landform be appropriately integrated into the landscape of the plateau, and indigenous ecosystems substantially re-introduced with the retention or restoration of a significant number of their presently valuable elements.

[131] The experts' joint witness conference on rehabilitation, (not including the landscape architects), noted that while the present landform would not be recreated exactly, the final landform is likely to resemble the form of the pre-mining topography, albeit with some overall flattening and a reduction in the steepness of the gullies. They also noted that the vegetation would not replicate the pre-mining state in terms of cover, variation, composition or overall character. The conference described the rehabilitation objectives as to establish some features of the pre-mining land forms and vegetative patterns, along with other features including:

• low stature plateau wetland vegetation in a matrix with surface rock slabs on low angle overburden dumps;

• scrub and forest; and

• boulder fields

The intention was to establish sustainable and diverse indigenous vegetation cover and indigenous faunal assemblages resembling what presently exists?06

Effects on vegetation

[132] The current cover on the 157 ha mine site is 58.8 ha forest, 37.2 ha scrub, 32.8 ha pakihi, 19.8 ha sandstone. A further 8.2 ha is occupied by Lake Brazil and by tracks and other forms of disturbed land.207 In written evidence, BCL environmental

~s~~-c"a;;r,~ 205 '\'<.\ . \ Joint witness conferencing statement (overall Ecological Values) Q14 ---~.~~ 206 , ;, «•·~"':'} .J. \ Joint witness conferencing statement (rehabilitation) Q 12a 207 t;rr ff}\~· \'-~h; ;.~1 \ Mr Kingsbury, Evidence-in-chief, paragraph [19] 0z. ""'-~ ~r· .....,,, . ~ .'~'\ ~~ .:::;- i ?=1 \ _., "'~~~·••\f , (ff/... ~ /\!;' ~..._;~· '"------<0;\

~!cour;\~""-...:...:.~_ ...--/ 49

superintendent Mr Kingsbury and a senior scientist also called by BCL, Dr CW Ross,208 told us that the company's intention was to produce approximate final land cover of:

• 58 ha forest and tall shrubs;

• 49 ha scrub;

• 21.6 ha pakihi, including rock slabs; and

• 28 ha boulderfield.

[133] Methods to achieve this include:

• Vegetation direct transfer ("VDT") - a process of transferring plants in groups with soil directly from their present to their final site;

• Vegetation indirect transfer ("VIT") - in which the sods of vegetation and soil are excavated and stored for a period before being placed on their final site

• Transplanting of selected species;

• Planting of nursery raised seedlings sourced from the plateau;

• Hydro-seeding of lichens and bryophites mixed with seeds of vascular plants;

• Fascining of vegetation with viable seed (preferably manuka);

• Spreading of slash and mulch on prepared areas;

• Hydro-seeding of exotic grass at low rates. 50

These methods are listed in the order preferred by the joint experts' caucus.2°9 We note that this group of witnesses considered that VDT was far preferable to other techniques for re-vegetating the site.

[134] Mr Kingsbury estimated that direct transfer could be used for 71.7 ha of the mine site,210 though in cross-examination, he accepted that the schedule of stripping reduced the amount of pakihi that could be so transferred from the estimated 21.6 to something below 18 ha.2 11 That is unfortunate, because the evidence of both Dr Ross and Mr Kingsbury was that direct transfer of pakihi was relatively easy, "akin to installing ready-lawn".212 Neither Dr Ross nor Mr Kingsbury foresaw problems with the direct transfer of scrub (22.7 ha of this being proposed).2 13 Dr Ross provided us with an assessment of the soils on the escarpment mine site. He testified that Vee Forty soils, comprising 65% of the soils on site and Trent soils comprising 24% were both ideal for VDT. The same was true for Christmas soils comprising 10%, though Dr Ross said that salvage of them might be limited on steep and bouldery forested slopes.214

[135] The evidence on direct transfer of forest was much more guarded. Dr Ross cited the success of properly implemented VDT on lowland alluvial gold and coalmining sites, particularly in terms of the transfer of beech trees, but noted that transfer of podocarps, as might apply to yellow-silver pine, pink pine and kaikawaka over 2m high had not proved very successfu1.215 Mr Kingsbury added that forest more than 4m tall would require to be cut prior to being moved.2 16

[136] In terms of the 58 ha of forest cover BCL intends to create, 27.4 ha is proposed to be directly transferred, and 30.6 ha established through planting. Mr Kingsbury, in addition to tertiary qualifications in geology and natural resources engineering, has a number of years experience in mine rehabilitation, including at Stockton and Denniston. We cite from his evidence about planting to demonstrate the approach that is likely to be taken to planted areas:217

209 Joint witness conferencing statement (rehabilitation) Q15 210 Mr Kingsbury Evidence-in-chief, paragraph [66] Table 4 211 Transcript page 724 212 Dr Ross Evidence-in-chief, paragraph [44], Mr Kingsbury, Evidence-in-chief, paragraph,[66], Exhibit 72A 213 Mr Kingsbury Evidence-in-chief, paragraph [23.2], Exhibit 72A 214 Dr Ross Evidence-in-chief, paragraph [63]-[65] 215 Dr Ross Evidence-in-chief, paragraph [35] 216 Mr Kingsbury, evidence-in-chief, paragraph (23.2) 217 Mr Kingsbury, evidence-in-chief, paragraphs [36], [38] 51

Generally, high species diversity is not the focus of, nor the key to, the success of a rehabilitation programme. In areas of high rainfall like the EMP site, the priority is to get a vegetation cover (of any sort) established for soil protection purposes ...

Of the 92 endemic species found pre-mining by Overmars and Lloyd (2012), all but one are regarded by experienced propagators as being able to be propagated. Of these, 40 (44%) could be generated with ease, while 47 (51%) could be grown with moderate effort. The remaining four would be very difficult to produce.

In my experience it is preferable to propagate large numbers of those species that are straightforward, rather than waste valuable resources on problematic species. For example, some Gahnia species are difficult to propagate, while Astelia, mountain flax and Gaultheria are limited by seed availability and Myrsine divaricata, Pittosporum rigidum and pink/yellow silver pines are very slow to produce.

Notwithstanding all this, we heard that the rehabilitation plan is little more than an 'advanced concept' and is subject to change given its direct inter-relationship with the mining schedule as Mr McCracken explained:218

The end result is a careful balance of sometimes conflicting objectives and there will always be rehabilitation resources that need to be stockpiled until the mine reaches a steady state ...

By contrast, Mr Overmars acknowledged the importance of a more rehabilitation­ centric approach and the benefit of working ahead to re-create specific habitats and to transfer rare plant species into those areas once rehabilitated?19 We gained a similar impression in respect of fauna.

The mine schedule also currently precludes the use of a significant amount of VDT - suitable material. This is particularly so for the first year of works where there is nowhere within the mine footprint for vegetation to be directly transferred (although we heard that this may present an opportunity to rehabilitate some of the more disturbed areas of the plateau, thereby improving habitat linkages).220 As it stands, some 7 5 ha of material is proposed to be stockpiled in the first year of works - with the inherent loss of biological value?21 Much of this material is to be stripped from the more biologically diverse and intact areas within the site, including west of the Trent Stream and the site of the coal processing plant.222 52

On further questioning Mr McCracken acknowledged that a greater emphasis could be placed on the enabling of VDT within the mining schedule. He was of the opinion that the focus on the different vegetation types was akin to the scheduling of different mineral resources and that, in short, "it's not hard to do, it's just good planning."223

Much in this case revolves around the competing claims of economic benefits and effects on rare eco-systems. In order to produce an outcome that fairly deals with these competing claims if consent is to be granted, it would in our view have to be on terms that require attention to some elements of present eco-systems that demand more rather than less effort. We note the acknowledgment of Mr Overmars that, if the present mixed beech/yellow-silver pine, pink pine forests were to be replaced simply by beech forest, there would be an adverse ecological effect.224

[137] A significant element in the Forest and Bird case was that BCL will be unable to produce a rehabilitated site which in the long term retains the mosaic of vegetation types it proposes. For this argument, it relied on the evidence of Dr Kelvin Lloyd. In summary, Dr Lloyd was of the view that the rehabilitation proposed by BCL would result in significant changes to drainage patterns and nutrient levels; in consequence the ecology of the mine site would, over time, be changed from an infertile sandstone plateau eco-system to a productive mixed beech forest system like that on the plateau's margin.225

[138] A number of other witnesses called by Forest and Bird assumed the outcome predicated by Dr Lloyd as the basis for their own predictions as to the effects of the mine on species within their own range of expertise. Dr RK McClellan, fauna ecologist called by Forest & Bird, wrote that the successional development of plateau tussock to scrub and then forest as a result of hydrological changes would result in the large-scale loss of the South Island fern bird and New Zealand pipit from the mine site, and adversely affect the western weka by reducing the extent of scrub habitat they prefer.226 Ms Walker likewise told us that she founded her conclusion that rehabilitation of the mine site would have little ability to support snails on the following (among other) factors:

• the substrate would be more free-draining and acidic; 53

• the hard sandstone layer which currently impedes drainage and creates moist soils will have gone and the water table will be lower;

• the vegetation essential for shelter . .. will eventu.ally grow into tall beech 27 forest, unsuitable for Powelliphanta patrickensii •••

She specifically cited Dr Lloyd in support of these opinions.228

[139] A considerable amount turns on whether we accept Dr Lloyd's view of whether pakihi and scrub will be able to be re-established for the long term, so we examine it in some detail. Dr Lloyd stated:229

A major ecological function of the sandstone substrate is its formation of an impermeable layer close to the surface, which impedes drainage, creating wetted soils and providing habitat for low fertility fen and bog wetlands and low fertility forest types

I am not confident that the artificial low permeability layer proposed for the rehabilitated landform ... will replicate the ecological processes of the current sandstone layer.

[140] BCL's water management engineering witness Dr MJ Ellis gave evidence that on the flatter areas of the ELF where pakihi is to be placed, it is proposed to establish a protective layer with a hydraulic conductivity of 1 x 1o- 8 m/s. On the sloped areas, compaction would be less complete and conductivity would be in the order of 1 x 10-7 m!s?30 Dr Ellis expected a water table to form above the low permeability layer for extended periods, its depth varying in accordance with the intensity of rainfall and local topography. He told us that the design philosophy for the ELF cover is to maintain a saturated layer to sustain the pakihi vegetation.231 A condition of consent is proposed which would require maximum rates of conductivity to be as set out above. 232

[141] Dr CW Ross, an expert in soil physics called by BCL,233 told us that the topsoils of the plateau were highly water retentive. Further, he considered that the sharp interface between the fine-textured VDT or replaced soil and the coarse

227 Ms Walker Evidence-in-chief, paragraph [187] 228 Ms Walker Evidence-in-chief, paragraph [197]- [198] 229 Dr Lloyd Evidence-in-chief, paragraph [180]- [181] 230 Dr Ellis Evidence-in-chief, paragraph [149] 231 Dr Ellis Evidence-in-chief, paragraphs [150], [152] 232Revised condition 116 c)- e) set out at paragraph [156] of Dr Ellis' evidence 233 Dr Ross, evidence-in-chief, paragraph [5] 54

sandstone rock forming the substrate would cause the surface soil to act like a sponge placed on a gravel bed. The water would seep out only when the soil is fully saturated. 234

[142] Dr Ross also rejected Dr Lloyd's evidence about increased soil fertility. He told us that the overburden substrates above the lower permeability layer were very deficient in the plant nutrients nitrogen, phosphorous and calcium. He knew of no evidence that bringing the non-acid-forming rock to the surface in a pulverised form caused change to the nutrient status of the soils.235

[143] Dr Lloyd has some knowledge of soil science and chemistry gained from his undergraduate studies and from his consideration of those disciplines in the course of his work, 236 however in matters of hydrology he deferred to the expertise of Dr Pope and Dr Ellis.237 While Mr Overmars was prepared to acknowledge that even small changes in hydrology might cause a change in plant composition,238 as did Mr Craig, we find, based on the greater experience and clear knowledge brought by Dr Ellis and Dr Ross, that the hydrology of the ELF, where it is proposed to be rehabilitated to a pakihi wetland, will significantly resemble present hydrological patterns as to make its evolution to mixed beech forest unlikely, even on a time scale of some 300 years.

[144] We detect slightly less certainty among the expert witnesses about the outcome of areas intended to be forested. A wide range of experts, including Dr Ross, Mr Kingsbury and Mr Overmars, agreed that the type of forest that ultimately developed would depend on the hydrological and soil fertility regimes, with lower soil moisture and greater fertility causing a shift towards mixed beech forest, while impeded drainage and lower fertility would favour a pirik pine/mountain beech forest. 239 Under cross-examination, Mr Overmars remained of the view that a pink pine element would remain in the forest composition,240 but a statement of Dr Ross and Mr Kingsbury at the joint experts' conference appears to us more equivocal:241

Whether [the forest] is a common tall beech dominated forest (K Lloyd's evidence in chief) or a more mixed beech podocarp forest similar to some of the current forest areas on the mining site is less certain. The chances of the

234 Dr Ross, Rebuttal, paragraph [12.1]- [12.3] 235 Dr Ross, Rebuttal, paragraph [14.2] 236 Transcript week 3, paragraph [410] 237 ""'"---·-·--... Transcript week 3, paragraph [448] ~ cJ.H OF /;~"'\ 238 Transcript week 3, paragraph [210]; see also Transcript week 3, paragraphs [603], [608] "-.,~' ~ «' 239 Joint witness conference statement (vegetation) 240 ... J ,.r; ~·· Transcript week 3, paragraph [121] /; 241 i \!!.~ \~!:~:.. ~~ 0 Joint witness conference statement (vegetation) Q17 C!J ~ '{!(Y·!G'f,;;\~.· .. \ t(:l\~v·· z . 5- .:5 ::g \ ~::\~~~'. \'~~·~,.._,· :-.,.,~7Wl .. ~ I "C (''? ·!,.IS~tl.v,y.ui'<"v ;:,.4 -A ,.._t'Y#\~W~.<" v .,/~_, l7A -....._ ____.....- ,.. f'"\\ I ~Q~J~ 55

latter are more likely if the soils on the planted areas remain wet with low fertility.

[145] While, as we have indicated, we do not consider the areas proposed for pakihi are likely to evolve into forest as a consequence of the EMP, we consider the development of tall mixed beech forest on the deeper soil intended to support forestry, something of a potential effect. Such an effect, with the elimination of pink pine, if it were to eventuate, would not be negligible. Pink pine trees are some of the oldest on Denniston, 400-500 years old?42 If we decide to consent to the proposal, we shall require an appropriate rehabilitation plan to give particular attention to securing habitat suitable for the continued presence of this species.

[146] Some adverse effects of the mine project are much more certain. Mr Overmars and Dr K Lloyd concurred that the natural ecological character of 20 ha of sandstone pavement would be lost.243 We do not overlook the intention ofBCL to include some 28 ha of boulderfield in the site rehabilitation, nor the statement of Mr Kingsbury that the use of pavement slabs closely intermingled with VDT pakihi and scrub would closely resemble the current mosaic of rock and vegetated surfaces?44 We are however inclined to agree with Dr K Lloyd that the smaller blocks of sandstone are less likely to contain the cracks and crevices found on larger expanses of sandstone pavement, and will be less amenable to colonisation by plants.245

[147] In her evidence in chief, Ms KA Bodmin, a wetland ecologist called by BCL, summarised the effects of the mine as follows: 246

• all pakihi wetland in the mine area would be impacted by the proposed development; some 8.4 ha would be lost and 29 ha disturbed;

• within the proposed escarpment mine area 0.61 ha of a total of 2.13 ha of fen wetlands on the plateau would be disturbed. [We think Ms Bodmin meant 247 lost, and that was the word she used earlier in her evidence ];

• an estimated 0.1 ha of seepage would be disturbed.

242 Transcript week 3, paragraph [84] 243 Mr Overmars Evidence-in-chief, paragraph [599.8]; Dr K Lloyd, Evidence-in-chief, paragraphs [176]-[177] /'"'"'""j'"<""'>·~ 244 Mr Kingsbury, Rebuttal, paragraph [18] We found the words "closely resemble" gave us a far better indication /.\X S'i:l\- Of li~ of what the applicant intended than the word "emulate"- semantics favoured by Buller Coal witnesses "~<'·' /-~-,,~' \ 245 Dr Lloyd Evidence-in-chief, paragraph [177] 246 . .. c,~v'• .c:Y \ Ms Bodmin Evidence-in-chief, paragraph [242] rJJ ~~~ ~~~(.~l.~ \ ~~' At P"'il''Ph' [196], [20 I] ""d [242] .c,. 1'1/1, .• 1 ..•. ..:.::::. r\1 ~~''\>.,,;6; 1. 1:_f'/~\~, ~.I , ·~ •• ~ >.;.:;.,,.• ~kMl~:~·; I -;;;.:· • Sf: ~ "~,~~~~~:;~:··t/1 ,(!.: '\0/;)0~---// <;\• . '!/( COU?" \~ :> '~'- ... ~ .._.,,. :.~ .... ---··· 56

[148] Ms Bodmin told us that seepages were listed as a nationally endangered eco­ system. She indicated that their small size made mapping difficult and that their full extent on Denniston Plateau was unknown, although she considered seepages would continue to be well represented on Denniston Plateau. She said that that would also be the case with pakihi wetlands. The 8.4 ha lot represented only 2% of this habitat type. However she considered the effect on fens would be significant as they were uncommon within the ecological district and under pressure from mining activities on the plateau.248

[149] In response to suggestions from the Court, Mr McCracken investigated whether parts of the project could be re-designed to reduce the effects on wetlands. He told us that both the coal haul road and the public by-pass road could be re-designed to avoid wetland areas. Extrapolating from a table in Ms Bodmin's evidence, that could reduce the area of affected fenland by 0.275 ha.249 The relocation of the amenities area to the base of the Barren Valley adjacent to the MIW surge pond and water treatment plant, which Mr McCracken also indicated was possible,250 would avoid impact on a further 1.72 ha offenland.251

[150] Ms Bodmin expected changes to vegetation composition resulting from localised changes to water outflow and ponded areas. She predicted these would be limited provided hydrological and other underlying conditions remained the same.252 We generally accept that. However, we note that the EMP site contains a number of threatened and at risk plants which grow in pakihi wetlands or fens and seepages.253 We note the comments of Dr Glenny:254

It may be impractical to hope to restore vegetation that is so close to the original type that the rarest species are also found there. Naturally rare species are simply species with narrow and uncommon niches. Restored sites will probably have fewer of these rare niches unless they are deliberately created. To ... create them would involve understanding those niches in detail, but may still be difficult through rehabilitation. That knowledge exists for Telarania inaequa/is but the bedrock bluff-sites it occupies are probably not possible to re-create. Knowledge of the precise habits of Neogrollea notabilis, Saccgynidium decurvum, and /so/embidium anomalum does not exist ...

248 Ms Bodmin Evidence-in-chief, paragraph [243] 249 Mr McCracken Third supplementary statement, paragraphs [15], [16] 250 /·' """ ""' ··~ Mr McCracken Third supplementary statement, paragraph [11] /~\. S~~~ OF~~ 251 Mr McCracken Third supplementary statement, paragraph [11] 1 252 ' '\ /" ~. {<' Ms Bodmin Evidence-in-chief, paragraph [218] 253 ['; {M'~"-) ...:!'0 254 Exhibit 39 ~/>.'B~t§t[f.i~ 0 Dr Glenny Evidence-in-chief, Annexure 1, page 19 1.'1 ~··!'"{'.", "7 ~ \.,,~JV ;J .:• ·:::: r"1'\b"i ' ; ~) '-t, JC,; ::_:;;;'I \~~~~··Ji,_s~; 57

The loss of a number of rare wetland plants from the mine site is likely and constitutes an adverse ecological effect of some significance.

[151] Ms Bodmin noted that until vegetation cover is established on the artificially created ELF, there is the potential for exotic weeds to invade. 255 BCL proposes to deal with this potential by means of a pest management plan. Mr Kingsbury told us that the aim of such a plan would be threefold?56

• To eliminate broom, Himalayan honeysuckle, blackberry, pampas and ragwort;

• To prevent the spread of gorse and montbretia;

• To limit the ability of the heath rushes Juncus squarrosus and Juncus bulbosus to compete with native species.

If we give consent we will be particularly concerned to ensure the weed control management plan is effective, given the largely intact status of the vegetation on the plateau. We note a proposal to control erosion by means of hydro-seeding exotic grasses. That suggests a tension in light of the concerns about potential for invasion of exotic weeds, however we recognise that if consent is granted, there would be a need for some balance, properly to assist with erosion control. Conditions of consent would need to ensure later control of spread of the exotic grasses, and indeed their elimination as native species took over.

[152] We add that in addition to the biodiversity loss that would remain evident when the site appears to be fully rehabilitated, the greater temporary losses would persist for periods longer than usually associated with the phrase "temporary effects." Mr Overmars wrote that the mine would cause a loss of ecosystem quality and services relating to such matters as loss of primary vegetation, biodiversity, water catchment protection and carbon sequestration that would extend for many decades, given slow growth rates on the plateau, and in the case of slow growing species such as southern rata, mountain beech and pink pine (among other species) for centuries.257 His evidence was that rehabilitation of the forest to a state similar to the present would 58

take over 500 years. The degree of success of vegetation rehabilitation would largely control the extent to which other parts of the eco-system can be restored. The opinion shared almost universally across the witnesses within a wide variety of specialties is that VDT will produce better rehabilitation more quickly than any other method. The evidence suggests that something under 70 ha of VDT would be achieved. We do not overlook that there remains a risk with staging that vegetation is double-handled on occasions or delayed in its deployment as VDT, such risks potentially arising from sequence of mining driving the sequence of rehabilitation, rather than the reverse. We will have more to say about this.

[153] We now tum to consider the effect of the EMP on the invertebrate fauna of the site, since these provide both a food source and eco-system services for many of the more noticeable and charismatic fauna of the plateau.

Effects on terrestrial invertebrates

[154] Mr Toft and Dr Gibbs agreed that the major impact of the mine on terrestrial fauna is loss of habitat. The scale of that effect turns on the success of rehabilitation?58 They further agreed that in areas where VDT was not used, for a long period of time invertebrate communities would have little similarity to those currently on site, and in the early years would favour common species and disturbance specialists. Mr Toft anticipated that the presence oflogs and dead wood following the cutting of forest for VDT would favour dead wood specialist species. Both terrestrial invertebrate witnesses accepted that any description of the invertebrate communities that would eventually develop would be largely speculative, as would an assessment of the length oftime it takes them to begin?59

[155] Dr Gibbs, relying on a study of beetles in a small remnant of native bush, and neighbouring gardens along the shore of Manukau harbour260 cautioned against the assumption that invertebrate fauna would naturally disperse from a natural area to a nearby artificially created habitat, even if appropriate vegetation types were present.261 However, while there is significant uncertainty about outcomes over a wide range of types, we consider the surroundings in the Lynfield study (residential gardens, golf course and lake) and those on the plateau with little post-mining activity,

.4's~:f\L~·Of~l~t 258 Joint witness caucus statement (invertebrates) Q8 259 <_(• /~----.., ,.f;' Joint witness caucus statement (invertebrates) Q9 . 26°Kuschel G, 1990, Beetles in a suburban environment, DSIR Plant Protection Report No. 3, DSIR, Auckland ~~. r''!U 261 ~tf:>.-~~·~:;~);:;:~'~·.,.. 0 Dr Gibbs Evidence-in-chief, paragraph [118] \ij. '·. l>:•il·,J.:; :2:' ·{t ,,''"'!""h1J<(,. - ·~ ;~ .\~\~~tr~~.lrot~ ~~ ~ .-.o.;ll·IY"<;"" ,:,),t(\, '"'-: J.2j f ?-.""".r r,•Af''!rrJ

would be very different, and that comparatively little about the potential future of the mine site can be deduced from this earlier work.

[156] Dr Gibbs appeared particularly concerned about the potential effects on large invertebrates that require the complex qualities of old forest or mature landscape habitat such as large rotten logs or weathered slabs.262 However as Mr Toft pointed out, there is no lack of such habitat on the edge of the mine site.263

[157] Mr Gibbs also indicated that one of the most important considerations in terms of invertebrates was abundance, and we accept that it is often numbers that enable an invertebrate species to play its part in the wider eco-system. Evidence on abundance is avail~ble only for Powelliphanta patrickensis and a limited number of worm species. Whilst Mr Toft did undertake invertebrate surveys, the overall abundance 264 encountered was relatively low • This led Dr Gibbs to conclude that there was insufficient invertebrate data (with the exception of that obtained for snails, earthworms and fresh water species) such that any taxonomic significance or statistical assessment of abundance was inadequate265

[158] It is clear to us that the introduction of invertebrates to rehabilitated land would bear a close relationship to the success of revegetation. Mr Toft told us that the most distinctive coal plateau habitats, pakihi, wet tussock-lands and short shrub-land are generally the most amenable to VDT. He referred to research on early trials of VDT which showed invertebrates including large-bodied flightless species such as weta and carabid ground beetles present on the translocated sods, and still present two years later.266 In the case of forest habitats he considered the sudden removal of the canopy was likely to cause considerable change to the composition of the invertebrate communities, which would remain detectable for hundreds ofyears.267

[159] We accept that there is considerable uncertainty about the future composition of the invertebrate community of the mine site. Mr Toft was frank about the losses likely to occur and the length for which they would be apparent. We note his concern that appropriate monitoring, including monitoring in comparable areas outside the mine site should occur. In determining whether consent is to be given, we would need

262 .. Dr Gibbs Evidence-in-chief, paragraph [132] ~~\;""OF':--,. 263 Mr Toft, Individual statement after Expert Conferencing Q 10 "' '::.___ 1,:~-- 264 Mr Toft EIC para 69 265 ., ' Dr Gibbs EIC paras 167-8 \ "' M- Toft, """'Expert Collerendng Q12 QJ ~M~~\.-jtyii<;f8'-Yt:· (~_:iJ ;~~~--- ~;:£ \ 267 Dr Ross Ev!dence-m-ch!ef,Individ~ ""~mont paragraph [94] :z A··~1f-~. 'I'J,,~ .;_-c I ::;; "\\_;,;'f. !:Ci; ---!I 'l'l\,..-" -<>•·'""""';J;{;i_,c,. ,,,,.•a'J I t./.,j"!. ,• I ;;~ ~}':;~\·~ !l '\// ~/v}-~S~/ ' courr;\ ....">_,...... ~.~-""" 60

to pay close attention to the appropriateness of such conditions. There is relevant evidence that one group of invertebrates, namely earthwmms, are important in that. As well as performing a number of functions to maintain soil quality, they are an important source of food for weka, the great-spotted kiwi and Powelliphanta patrickensis.

[160] Dr Ross referred us to a 2011 study of earthworms at sites on Stockton that had been subject to the VDT process. That study revealed no significant difference in earthworm biomass and diversity between undisturbed land and land that had been subjected to VDT in the past 1 to 5 years. The study also noted that very few or no earthworms survived in the anaerobic core of soil that had been stockpiled for between 1 and 13 years, although reasonably abundant and diverse communities survived in the top 0.2m. Where stockpiled soil had been spread and replanted, abundance of earthworms remained low at least for periods of 1 to 6 years.268

[161] Ms Walker noted that the study referred to269 had sampled only that top 200mm of soil on VDT sites. She was concerned that the VDT process, which involved excavating sods to a 300-500mm depth would cause damage to anecic (burrowing) earthworms, which formed a considerable part of Powelliphanta diet.270 Most pakihi soils are less than 500mm deep and are capable of being salvaged entire by the excavator, so that such anecic wmms as they contain will be transferred with them. The same may not apply in the case of deeper and steeper soils that underlie forested and some scrub areas.2 71

[162] We anticipate that earthworms will exist in similar abundance to the present in some transferred paldhi VDT and some scrub VDT. We consider deeper burrowing earthworms are less likely to survive in forested VDT and in areas where other methods of rehabilitation are used.

Effects on Powelliphanta patrickensis

[163] Consideration of the effects on earthworms logically leads to consideration of the effect of mining on the proportion of the Powelliphanta patrickensis population affected by it, this species being an endemic invertebrate. The most significant effect 61

on the giant snail is the loss of habitat. There was significant disagreement between the parties as to the extent of habitat loss and the extent to which and timeframe within which habitat can be restored.

[164] Ms Walker estimated the loss of habitat at 17 4.3 ha.272 Mr Buckingham, with some justification, considered this an over-estimate, pointing to areas of rock pavement, disturbed land and other unsuitable snail habitat.273 He estimated that 129.7 ha of habitat would be lost. Ms Walker was also sceptical that any future habitat for the snails could be restored on the site of the mine and the coal processing plant. Her opinion is founded on the following considerations:

(a) the substrate will be more free-draining and land around the seepage drains may be more acidic;

(b) the hard sandstone layer which currently impedes drainage and creates moist soils will be gone, and the water table will be lower;

(c) the new substrate, including any snails spread over the ELF will have no structure, organic matter, or earthworms;

(d) the vegetation essential for shelter, humidity control and organic matter for earthworms will take many years to establish and will eventually grow into tall beech forest unsuitable for Powelliphanta patrickensis;

(e) large, deep burrow dwelling earthworms which form the snail's primary food are likely to be permanently absent, and the smaller typical earthworm community used by juvenile snails is likely to be comprised of few species at low abundance.274

We have recorded our finding that we are reasonably satisfied that pakihi soils transferred to the ELF by VDT are likely to retain sufficient moisture to prevent succession to tall beech forest. We examine the remaining propositions in tum. We have also noted that draft conditions of consent provide maximum levels of hydraulic 62

conductivity for the low permeability layer beneath the ELF, and these are necessary if it is to serve its other function of preventing acid mine drainage.

[165] Dr Ross's evidence already referred to, is that most soils on which pakihi grows will be capable of being transferred intact, along with the earthworms they contain, including some of those which burrow?75 We are also conscious that while Powelliphanta eat deep burrowing earthworms, they will survive on any earthworm species available, as Ms Walker acknowledged. 276 We do not imagine that the process of VDT will avoid mortality amongst both earthworms and snails, and Mr Buckingham was unable to estimate the number of snails that could be rescued. However Dr Ross also indicated that, where soils are stockpiled and re-spread, very few, if any, earthworms survived in the anaerobic core of the stockpiles, and that at least within six years they do not recover in the soil when it is replaced and planted. Further, there is no evidence to indicate how long recovery of earthworm populations, and their ability to sustain snail populations, might take.

[166] We believe on balance on the evidence that there will be a surviving Powelliphanta population in VDT pakihi and scrub, perhaps less abundant than at present, but we do not find it likely elsewhere. At best about 40 ha of snail habitat will remain. Whether further habitat will occur over a very long period is conjectural.

[167] Mr Buckingham made the suggestion that, following VDT from the coal processing plant site, a search be made for remaining snails, so that they could be individually transferred. Ms Walker considered this unlikely to be beneficial because she considered no suitable habitat was available. In part at least, her view is dependent on the notion that the snail population is at carrying capacity and unaffected by predators, and we do not accept that, even though we do not know the precise extent of the influence of predation on the population. We find that for the CPP area, a post VDT search should be made for snails with a view to translocation. There is a precedent for relocation of snails from earlier consenting when Powelliphanta augusta were found and taken for protection and later re-location, and notwithstanding Ms Walker's view, may merit further consideration.

[168] Mr Buckingham told us that snails would die predominantly during the stripping and construction phase of the mine, but there would also be mortality during

275 At paragraph [154] above 276 Transcript, week 4, paragraph [106] 63

operations where snails might be crushed, or, if they strayed into degraded areas, die from desiccation. Cleared areas might also make them more visible to predators.277

[169] There was agreement among the witnesses that a further effect of the EMP would be fragmentation of habitat, and reduced dispersal of the populations and some restriction on the flow of the gene pool. However the magnitude of the effect remained in dispute.278 Mr Buckingham's view was that the concern ofBCL to utilise already disturbed areas for pipeline routes, roading and power transmission routes would reduce the effect, because snail densities in such areas were low.279 Ms Walker noted that existing barriers to snail movement would be enlarged by the development of such supporting infrastructure.280 We add that, given the limited amount of habitat created by VDT, there is a real possibility that snail populations preserved by these means might remain isolated for some time. We consider that if consent is to be granted, conditions must be imposed to require the restoration of tracks and improvement of cross-connections wherever possible.

[170] Mr Buckingham noted a series of other potential adverse effects on the snail population from mining activity, including:

• increased risk of fire;

• localised dust from use of the roads and the operation of machinery (these could both diminish habitat and kill snails directly by desiccation);

• improved access for predators by the cleared routes created;

• competition between translocated snails and those already in situ.281

We would expect suitable management plans to limit the first three of these potential effects. We are not certain of the extent to which relocation of snails can occur within the capacity of the environment to accommodate them. The conclusions we have drawn on predation suggest there is some environmental capacity for translocation,

277 Mr Buckingham Evidence-in-chief, paragraph [129] 278 Joint witness conference statement (snails) Q11 279 Mr Buckingham Evidence-in-chief, paragraphs [128], [G] 280 Ms Walker evidence-in-chief, paragraphs [166]- [167] 281 Mr Buckingham, evidence-in-chief, paragraphs [139], [135]- [137] 64

but we accept that the surviving population may not equal the sum of all the translocated snails and all the snails in situ.

[171] The worst possible scenario as a result of consent is the loss of all Powelliphanta within the EMP footprint. We do not think that will come to pass, but we agree with Mr Buckingham that, even if it did, it is unlikely to cause either the extinction of the taxon on Denniston Plateau, or a significant loss of physical and genetic connectivity.282

Effects on aquatic invertebrates

[172] Dr DJ Jellyman, an experienced fisheries biologist called by BCL, told us that the length of stream bed which would be destroyed by mining activity would total 6.76km. It is proposed to reconstruct 4.0km of stream bed as the ELF progresses. This would eventually drain to the Whareatea River. The effect of the proposed mine would be to reduce existing stream habitat by approximately 2.8 km or 40 percent.283

[173] Dr DJ Stark, a freshwater ecologist called by BCL gave evidence that New Zealand stream fauna had evolved in an extremely unstable setting with periods of heavy rainfall and extremes of stream-flow. Against this background it had developed considerable resilience and potential for recovery from disturbance. He noted that most of the invertebrates found in the Denniston streams were insects with an aerial stage in their life cycle. Nearby streams with similar habitats to those proposed to be created would provide a ready source of colonists. Dr Stark therefore had no real concern about the ability of macroinvertebrates to re-colonise the engineered stream channels once they were established in the manner proposed, provided the natural stream-form is re-established and bryophyte-covered rocks retained.284

[174] Dr Stark was more cautious about the timeframe within which recolonisation would take place, and the eventual species composition of the reconstituted invertebrate communities. He indicated that a number of invertebrate species were closely associated with bryophytes, which he considered might be slow colonisers of new stream beds.285 He did not consider there was sufficient knowledge to predict 65

accurately the timescale or the nature of the recovery trajectory, though his opinion was that it would take years?86

[175] Dr Stark also considered the effect on aquatic invertebrates further downstream of the Whareatea of mining activities, and of the water-take from the Waimangaroa on macroinvertebrate communities in that river. He considered that, if the receiving water standards set out in the evidence of Dr Hickey were adhered to, macroinvertebrate communities further down the Whareatea River would not suffer significant adverse effects?87 Nor did he consider those communities on the Waimangaroa River would be affected in any detectable way by the proposed water take. 288

Other aquatic fauna

[176] Dr Jellyman considered that the type of stream proposed to be constructed by BCL would provide reasonable habitat for koura?89 His evidence set out the key elements of koura habitat, and given the reduction in stream length we consider it appropriate to impose conditions of consent to ensure that is provided. Dr Jellyman considered it important to preserve the stock of koura presently inhabiting the stream. He considered this could be done by trapping some of the koura in each stream prior to vegetation removal, transplanting them to existing lakes (eg Gate Pond, a small lake immediately outside the footprint of the Freshwater Reservoir) on the site, and at the appropriate time, using them to seed the new waterway.290

[177] Dr Jellyman considered that, since the survival and growth of koura is influenced by the supply of food available, supplementary feeding stations providing such items as lucerne pellets or dog biscuits should be provided, along with additional cover in the form of brush piles and sections ofwood?91 We agree with that.

[178] Draft conditions of consent require that any discharges of mine-influenced water to the Whareatea River be within the pH range 4.5- 7.2. Dr Jellyman told us that that would be suitable to maintain stocks of koura. He also told us that further downstream, the inflow of tributaries unaffected by the mine would bring the pH level

286 Dr Stark Evidence-in-chief, paragraph [192] 287 .. . ._ Dr Stark Evidence-in-chief, paragraph [168] ...... ··~)t.,l\l. 0!-~· ... ,, 288 Dr Stark Evidence-in-chief, paragraph [174] ~~:/--- "Y.,~ 289 Dr Jellyman Evidence-in-chief, paragraph [29] ' ~ ~.it. . < 290 Dr Jellyman Ev~dence-~n-ch~ef, paragraphs [30]- [31], [33] 291 cp ~~?)~~~~~. Fffi\ G. Dr Jellyman Evtdence-m-chtef, paragraph [32]

""'"..::::.: [; ·;>. \~.·~wJ;ttJt•'l~;~ :.,~;?JJ-..1\:: ~ '>C,":-- ~1 1 ~~ ~~ :,~;~~J(~.\:11 -....'-! 0. -~I"''Jr::;ii;,,r~).i.l ) J,ij/ ~; ;r"""4J,.,-.$8~/'t-~:\r) f;~r cou?.{ ~~\ ·' ,...... - 66

closer to neutral. He considered this would maintain the diversity of fish found in the lower reaches of the river.292

[179] BCL proposes to ensure that suspended sediment in discharges to the Whareatea does not exceed 30mg/litre (30NTU). Dr Jellyman considered that would be adequate to maintain downstream stocks of koura. 293 It was also his opinion that the impact on the fishing values of the Waimangaroa River from the proposed water take would be within acceptable limits.294

Effects on lizards

[180] Considerable uncertainty surrounds the effects of the proposed mine on the lizard fauna of the site - but this uncertainty relates more to the success of any programme to relocate and subsequently re-introduce the lizard fauna there now, than to the effects of the mine on the site's potential as lizard habitat. Mr Chapman and Dr Tocher were agreed that areas not subjected to VDT or boulderfield habitat creation would not provide lizard habitat.295 They further agreed that in the short to medium term (up to 50 years), no attempt should be made to relocate lizards back to the mine site.296

[181] They confirmed the areas subject to VDT might provide suitable release land if the transferred vegetation establishes itself. Because all the lizard species on the plateau are cryptic, it is likely that some lizards would not be able to be captured and translocated, but would be transferred in VDT. Mr Chapm~ considered that many lizards not captured for translocation have a high chance of surviving the VDT process.297 Dr Tocher cautioned that the ability for lizards to survive VDT would depend on the transfer occurring at a time of day and season of the year that suited their behaviour pattern, and the witnesses agreed that there was a paucity of information about which times and seasons were most appropriate if VDT was to ensure lizard survival. 298

292 Dr Jellyman Evidence-in-chief, paragraph [52] 293 Dr Jellyman Evidence-in-chief, paragraph [49] ./·•·:··:: L" .... "'··.., 294 Dr Jellyman Evidence-in-chief, paragraph [26] -1:1{p St-~_!JF h>\ 295 Joint Experts Caucusing Statement (Lizards) 20 September 2012, Q12 A' ''/ /_.- ~ " '/('<' 296 Joint witness conference statement 20/11/12, paragraph [4] A , r+··) ,.1'1\ 291 Joint witness conference statement 2o/n112, paragraph [8] 298 JZ~-:$~~~<'}...Jlf 1 \ 8\ Joint witness conference statement 20/11/12, paragraph [7] .,., tt\'"'r.}1\~·,.i;J. ,;,).;~r :, i. .. ~)~ II ..."')~_. ) 1 " .,t,,,,,,.Ji •;r') --.J / 0 J,,');"'~,,,:,,~P' ·~· v •.t~. '1)'•, .. • If-··~~.._ i' J \ ·~, ~ 'lo-f'\~~!·:t)·:Pt.~ .. ~ /' \.;.) ~~:~;:------C / ·0>\ " ·~ COtl~ \~;/··· '-io..,·.,.._.·~·r.·.·.. .:; ...... '"" 67

[182] The witnesses also agreed that no data exists to demonstrate the success or failure of lizard transfer to a site already occupied by other lizards. In particular they noted that no long-term monitoring of translocations which was capable of distinguishing transferred lizards from those already in the habitat had yet occurred?99 Further, they both considered the unique character of Denniston might reduce the applicability of information adduced elsewhere.300 In view of this, neither witness would guarantee the successful relocation of lizards from the mine site, and both agree that successful transfer back would require post-mining rehabilitation to be carried out to a very high standard. 301

[183] Dr Tocher, even after extensive caucusmg with Mr Chapman, remained concerned that the transfer of captured lizards to areas occupied by other lizards would result in significant mortality among both the transferred population and those lizards already in the area?02 Mr Chapman, though not certain, considered successful relocation achievable. In part, Dr Tocher's view follows from her opinion that the plateau is, as far as lizards are concerned, at carrying capacity - that is, the remaining plateau could provide habitat for few if any more lizards.303 The rodent presence identified by Dr Parkes and acknowledged by Dr Tocher suggests that the plateau is not at carrying capacity, but we note his evidence that the equilibrium reached when rodents have been present may be anywhere from close to carrying capacity to extinction.

[184] Dr Tocher accepted a proposition put by the Court that the mine site, being roughly 10% of the plateau area, would contain roughly 10% of the lizard population.304 We note that neither witness ruled out the proposition that the entire population would be lost, nor that the majority of the population would survive VDT transference or relocation305 (both think it likely that some lizards would be killed or injured). Realistically, both witnesses think that some lizards would survive VDT, though their estimates of numbers vary from 30 to 75% of those transferred?06 We consider 70% may be too optimistic in the long term because, until the vegetation has recovered, the habitat would be less suitable. In terms of transfers to other parts of the plateau, we consider some of the transferred lizards would survive, but the extent to

299 Joint witness conference statement, 5/12/12, paragraph [5.7] 300 Joint witness conference statement 20/11/12, paragraph [5] 301 .,... •• -··· "~-- . Joint witness statement (lizards) Qs 11 and 14 . ~ s'C.H OF~ 302 Joint witness statement 5/12/12 paragraph [5.5] ~~ ~--~.f' \ 303 Joint witness statement 5/12/12 paragraph [5.4] 4 , ... g•. _ ,-1'' \~ Transcript, week 3, paragraph [396] r ~\}),,§:-5~lr:;;Q{, _\ 05 Joint wi:ness statement (lizards) Q 14 ~ <:t~ '.t~~~-;;.Fut~.'\ ~ 3P6 Transcnpt week 3, paragraph [381] --· ,.('~:;· l;'i•"~'·'-1\.' ,., ' ::.0 :;J~~~ •t:~DD:i/ ::;;-' I (~;.. ~'i;'/.W~,.;.<:,~;K~_;;'> l,_:! / 'i;>%· ------/ di:.\ / '-J!Ir cou\-\1 ~::.., ""'-....,~.- ...... ,~.~r 68

which they would depends heavily upon what absorption capacity the plateau environment still has- and that remains for us a matter of uncertainty.

[185] We add two further effects on which the experts are agreed: in areas not subject to VDT, lizards would probably not be present unless they are specifically released there; secondly, any remaining post-mining habitat on the EMP would suffer fragmentation and loss of connectivity. It is likely that for many years the abundance of lizards on the site would be much reduced. 307

[186] We note that despite their differing opinions on the likely success of the proposals to salvage lizards, Mr Chapman and Dr Tocher have worked diligently and cooperatively to ensure that if, after bringing to bear all relevant considerations, the Court should be minded to grant consent, the conditions imposed would be such as to give the lizards the best chance to survive and thrive. We shall comment on conditions in a subsequent section of this decision.

Effects on birds

[187] Dr Powlesland listed eight consequences for bird-life of open cast mining. Since Dr McClellan also considered this list comprehensive we adopt it and set it out as follows: 308

• loss of habitat through vegetation and soil removal for the purpose of accessing the coal;

• loss of seasonal food sources through vegetation removal;

• individual mortality of eggs and chicks during vegetation removal and from birds run over by mine vehicles (the latter being particularly the case with flightless species);

• loss of fitness, including reduced productivity and survival rates as a result of forced migration and disturbance; 69

• fragmentation of habitat and possible loss of connectivity between bird populations;

• dust, vibration, noise, and the use of bright lights at night during all year round, 24 hours per day, 7 days per week mining operations;

• acid mine drainage; and

• pipeline obstruction to movements of flightless species.

We examine these potential effects in tum.

[188] The estimates of habitat loss depend to a significant degree on the long term development of the vegetation on the site, particularly the pakihi and scrub. If Dr Lloyd is right, and current eco-systems on the plateau are largely replaced by monolithic tall beech forest then neither avifauna expert disputes that fembirds and pipits would be largely lost from the EMP site, and that weka and kiwi would use the site at less density because of the reduction in forest margins. But we have found the extent of change predicted by Dr Lloyd unlikely on the balance of probabilities, and given his deference to the greater hydrological expertise of Dr Ellis.

[189] In the short term, there are likely to be adverse effects. Even with VDT, forested areas would be much reduced in height and canopy cover, and would take many decades to recover. Areas where other methods of rehabilitation are used would produce forest even more slowly. We accept Dr McClellan's evidence that until mature forest develops, the rehabilitated mine site would provide comparatively poor foraging habitat for kiwi and a considerably reduced number of potential nesting sites and daytime retreats. 309 The temporary effects on rifleman habitat in the EMP are likely to be more severe inasmuch as they use only the forest as habitat. Dr McClellan opined that they might be absent from the mine site for at least a century. She considered this a major effect.310 The rehabilitated mine site, particularly where rehabilitation is by VDT, is likely to be used by western weka fairly soon, but again Dr McClellan considered that the habitat would be of poor quality for some time; the forest cropped for VDT and planted areas would provide less shelter and less fruit, and prey in the form of lizards would be largely absent and in the form of 70

invertebrates much reduced.311 In any event, VDT areas would be close to or within the mine site, so are unlikely to be optimal habitat given the proximity to machinery and workings (at least in the short term).

[190] Dr Powlesland agreed that large forest nesting birds were likely to be absent from the mine footprint for 100 years. When it was put to him, he accepted that this would constitute a significant adverse effect on the bird assemblage.312

[191] It was not disputed that loss of habitat included loss of food sources. Nor was there any argument that birds forced from the EMP site would lose fitness as a result. Dr Powlesland accepted that kiwi forced from the EMP would find their home range restricted.313 Dr McClellan considered that if that led them to attempt to use the established range of other kiwi this loss of fitness might also affect a number of kiwi beyond the mine site?14 Dr Powlesland told us that kiwi, weka, robin, tomtit and fern bird forced to move from the EMP would have to compete for space with others of the species already established in habitat; mortality was a possible consequence.315

[192] The witnesses considered it unlikely that direct mortality would be avoided during the operation of the mine site. Dr Powlesland considered this a particular likelihood for weka. These birds are able to live and nest close to human habitation, and are therefore liable to have nests destroyed occasionally by vegetation clearance. Further, their inquisitive nature increased the likelihood of collision with heavy vehicles on the move?16 On the other hand, kiwis were likely to fare better on account of their shyness.317 Fern bird, pipit, weka and kiwi are all ground-nesting birds. Chicks and eggs are particularly vulnerable if vegetation clearance occurs during the nesting period.

[193] As we have described, BCL intends to provide underpasses to enable juvenile kiwi and weka to pass beneath its water and coal slurry pipelines. Dr McClellan expressed concern that if there were significant noise associated with the coal slurry pipeline, juvenile kiwi might be deterred from using them, and thus lose access to parts of their parents' territory.318 We consider that specific monitoring would be

311 Dr McClellan Evidence-in-chief, paragraph [231] 312 Transcript, week 3, page [544] 313 Dr Powlesland, Rebuttal, paragraph [29.1] •.. ··'" ¥···-"":"~.. 314 Dr McClellan Evidence-in-chief, paragraph [148] /.~<.;. SI:}\L _OF!;~~ 315 Dr Powlesland Evidence-in-chief, paragraph [74] "-'< -, <'"' 316 Dr Powlesland Evidence-in-chief, paragraphs [91], [92] ~r.; r·fi- ,,t 317 Dr McClellan Evidence-in-chief, paragraph [146] 318 W:i)))Zf'i2d~~'~. (? Dr McClellan Evidence-in-chief, paragraph [151] \['\ ~!·/·f.'?tll'1 :! 2: ·I H'l,~ •c,• < i < -q- :P ' 'J.\f>:~'Jt,~1 ~.-J c?,. "~g,.;,,~,z~r~~; ;)<-. . ,.....~ ~ "t~~;v,·:J..~ V:...;/ 1'/.'A " ~~\ / "-~G~~~ "'-~...... __ __..~ 71

needed to occur to check the reaction of juvenile kiwi and improve passage beneath or over the pipeline if necessary. There should also be trapping around this to reduce it becoming what is colloquially called a "feral feeder."

[194] Dr Powlesland opined that in general terms, the reaction of most bird species to noise, dust, vibration and bright lights would be to move away. But he qualified this by saying that reaction to these stimuli would be variable between territorial species and whether they occurred in the breeding or non-breeding season. While he would expect all species to abandon habitat in the face of mining activity, as long as the mining front was moving slowly enough to make that possible, he specifically said that ground nesting species, such as fern bird, kiwi, weka and pipit would, in his view, be least likely to move out ofharm's way. 319

[195] How significant these effects are considered to be depends on at least three factors about which the witnesses disagreed. These are:

• whether the plateau was a special habitat in the sense of being a "safe," (predator-free), haven;

• the scale at which the assessment of significance is made; and

• the value attached to the mitigation/compensation package offered by BCL.

We deal with the last of these matters in a subsequent section of this decision. We address the first two below.

[196] We cannot find the plateau to be a safe haven. As we have already indicted, predators, particularly rats, are in evidence in non-roasting years. There have been no studies to show what happens to predator numbers or to the abundance of native species in a roasting year. We temper that finding with the acknowledgement by Dr Parkes that changes in population occur more slowly at high altitude and on infertile sites.320

319 Dr Powlesland evidence-in-chief, paragraphs [80]- [82] 320 Transcript, week 4, paragraph [200] 72

[197] Dr Powlesland assessed the significance of these effects on a regional scale. He wrote: 321

On a regional scale, if mining of the proposed EMP is approved, loss of habitat would likely have a minor or less than minor impact on populations of bird species that occur in the area, except possibly for the fern bird. Whilst individuals of various species would be forced to move beyond the EMP footprint ... it is likely that most bird species populations of the region would not be affected to any more than a minor extent.

At the conclusion of his evidence he reiterated these opinions in similar phrases in terms of the Buller region. 322

[198] Like a number of witnesses, Dr Powlesland used the adjective "minor" to describe the level of effect he anticipated, just as some of the appellants' witnesses used the phrase "more than minor" in their evidence. This is perhaps excusable in that BCL's initial application was for a non-complying activity, but we point out what the Court has said many times, there is no gateway test of "not more than minor" applying to the effects of discretionary activities.

[199] What area Dr Powlesland was referring to when he used the phrase "Buller region" is not entirely clear. He was not referring to any territorial or regional authority boundaries. 323 Significantly he acknowledged an omission that he had not made an assessment of the effects of the activity on the assemblage of species on the plateau?24 He also acknowledged that the adverse effect of the mine on species assemblage would be significant.

[200] Dr McClellan considered the most appropriate scale for assessment to be the Ngakauwau Ecological District and the Denniston Plateau sandstone eco-systems.325 For the second of these we consider it sufficient to note Dr Powlesland's acknowledgement of the effects on the assemblage. Even if vegetation restoration were to go precisely to plan, the likely absence of kiwi and rifleman from the mine site for a century is a significant adverse effect. In terms of the Ngakauwau Ecological District Dr McClellan's assessment that the loss of habitat at the mine site is si~nificant depends to a considerable extent on her opinion that the plateau provides

321 Dr Powlesland evidence-in-chief, paragraph [72] 322 Dr Powlesland Evidence-in-chief, paragraph [115] 323 Transcript, week 3, paragraphs [57]- [58] 324 Transcript, week 3, paragraph [538] 325 Dr McClellan Evidence-in-chief, paragraph [116] 73

a refuge from predators. 326 We do not consider that it does, however we do consider that there may be less predatory pressure.

[201] We also note Dr McClellan's view that a wider approach to the assessment than a species by species evaluation is necessary, that for example the loss of a rifleman population within a mountain-beech pink pine forest is not the equivalent of a rifleman population in a lowland podocarp beech forest. That is relevant to our consideration of the appropriateness of the mitigation/environmental compensation offered by BCL, and to the ultimate question of whether to grant the consents which we consider later.

Landscape effects

[202] We have noted the agreement of the landscape architects that the adverse effects of the EMP would be high to moderately high during the operation of the mine. Among the amenity values of the plateau and the mine site identified and agreed by the landscape experts are exposed and open character, wildness, sense of isolation and solitude, natural history at macro and micro-scale, and silence. 327 While the mine is in operation, these values would be absent from the mine site, and reduced over the remainder of the plateau, the degree of reductidn diminishing with distance from the mine site.

[203] After full rehabilitation, the landform would be naturalistic rather than natural, but we are inclined to accept the view of the rehabilitation caucus that the landform would resemble the pre-mining topography. 328 That said, we think Mr Craig and Mr Brown may have been somewhat optimistic in considering that the effects after 10 + years would be in the low to moderate range.329 The evidence of the ecological experts is that vegetation is likely to take many decades to grow to full development, particularly in forested and non-VDT areas. Until it does so the influence of human modification would remain obvious, and the sense of isolation and the wildness of the site would likely be diminished, as would be the range of natural history evident. We anticipate there would be a noticeable reduction in the amenity values of the site for many decades 74

[204] We note the agreement of all three landscape architects that rehabilitation, when brought to fruition, would be more successful in remedying adverse visual and amenity effects than landscape effects.330 While we have indicated that we do not consider the site part of an outstanding natural landscape, the combination of permanent effects and temporary but long lasting effects on a landscape agreed to possess very significant amenity values are matters which must be brought to bear in terms ofthe final outcome.

Overall evaluation of effects

[205] There would clearly be positive economic benefits to be derived from the implementation of a consent for the EMP, as described earlier in this decision. But there would also be adverse effects on the ecology of the mine site and on a rare assemblage of native plants and fauna, many of which will endure for very many years. There would also be some temporary and some permanent adverse landscape effects. Whether these effects are acceptable in the light of the various statutory instruments to which we must have regard might well tum on the adequacy of consent conditions both to provide the best possible mitigation of these effects and also to offset or compensate for residual adverse effects which cannot be avoided, remedied or mitigated.

[206] We note at this point that the planning witnesses, in their desire to give the Court a comprehensive assessment of the proposal, ranged over a number of matters which the appellants had indicated by Memorandum dated 1 March 2012, they were not proposing to dispute. These matters included heritage, noise, lighting, dust, traffic, and recreational and cultural values. We do not propose to extend an already lengthy decision by discussing them. Equally, we indicate when we come to the various statutory instruments, we have no basis on which to suggest that consent would be inconsistent with the objectives and policies of any policy statement or plan in relation to such matters.

[207] We further analyse the proposal and its potential effects against relevant statutory instruments and in the context of forming our broad overall judgment under Part 2 RMA, in later sections of this decision. 75

Offset mitigation and environmental compensation

[208] As we indicated earlier, the applicant accepts that after rehabilitation of the site there will still be residual adverse effects on the landform, vegetation and fauna of the site that cannot be directly mitigated.331 It is therefore offering a programme of weed and mammalian predator control both on the Denniston Plateau and its surrounds, and on a further 10,000 ha, with a 3 km buffer zone on the Heaphy River within Kahurangi National Park. During the course of the hearing, a number of expert witnesses worked long hours to provide the Court with the most appropriate draft conditions of consent should the Court ultimately decide that consent was warranted. The conditions which give effect to the "offset package" therefore went through a number of amendments in the course of the hearing. We refer later to the precise wording of the proposed conditions, and the question of their legal validity. At this point it is sufficient to indicate that, in addition to the weed and animal control initially proposed, BCL is suggesting that 745 ha be set aside on Denniston Plateau for permanent legal protection from open cast mining.332

[209] In what follows, we set out the law as it has developed in terms of "offsetting" and "environmental compensation" under the RMA, consider the evidence on residual adverse effects and the degree to which they are offset, and finally comment on the precise conditions proposed.

[210] In JF Investments Ltd v Queensland-Lakes District Counci/,333 the Environment Court set out its view of the circumstances in which environmental compensation or biodiversity offsets might be relevant to the Court's deliberations in respect of a subsection that has now become subsection 104(1 )(c):

[42] We conclude that off-site work or seNice, or a covenant, if offered as environmental compensation or a biodiversity offset will often be relevant and reasonably necessary under s1 04(1 }(i) if it meets most of the following desiderata:

( 1) It shall preferably be of the same scale as work on-site, or should remedy effects caused at least in part by activities on site;

(2) It should be as close as possible to the site (with a principle of benefit diminishing with distance, so that it is in the same area, landscape or environment as the proposed activity; 76

(3) It must be effective, usually there shall be conditions (a condition precedent or a bond) to ensure that it is completed or supplied;

(4) There should have been public consultation, or at least the opportunity for public participation in the process by which the environmental compensation is set; and

(5) It should be transparent in that it is assessed under a standard methodology, preferably one that is specified under a regional or district plan or other public documents.

[211] These desiderata were applied and developed in Director-General of Conservation v Wairoa District Council,334 and Royal Forest and Bird Protection Society Inc v The Gisborne District Council?35 Particularly in more recent cases, the Court and Boards of Inquiry (presided over by Environment Judges) have tended to draw a distinction between various types of offsetting, some of which they tend to include in the category of remedy and mitigation, and some to be regarded as compensation. The Board of Inquiry into the proposed Transmission Gully Plan Change expressed it like this:336

What ultimately emerged from the evidence, representations, and submissions of the parties, was an acknowledgement that the term "offsetting" encompasses a range of measures which might be proposed to counterbalance adverse effects of an activity, but generally falls into two broad categories.

Offsetting relating to the values affected by an activity was in fact a form of remedy or mitigation of adverse effects, and should be regarded as such. Offsetting which did not directly relate to the values affected by an activity could more properly be described as environmental compensation.

[212] We agree with the distinction drawn by the Transmission Gully Board of Inquiry. We find that although the mine site is within the landscape and environment of the Denniston Plateau, measures to enhance other places on the plateau and species that are displaced from the mine site, may properly be regarded, to the extent that they are likely to be successful, as a mitigation of the adverse effects of the mine on the wider environment. 77

[213] The applicant submitted that the Heaphy Biodiversity Enhancement Area is, in these terms, a hybrid.337 Further, that as much as it aims to enrich species diminished on Denniston, it might be considered mitigation of the effects of the mine on that species. And that where it creates benefit for some species other than those diminished on Denniston Plateau, it is to be regarded as compensation for those elements of biodiversity which are lost, and for which no mitigation is possible. Forest and Bird submitted that the Heaphy is too distant to meet the desiderata set out in JFI Limited, and the ecosystem to be enriched is very different. We find that the benefits conferred on the same endangered or at-risk species that would be affected by the Denniston proposal entitle us, to the extent of them, to have regard to the compensation offered in the Heaphy. We accept that the distance that separates the two environments will have some influence over the weight we give it.

[214] In considering the influence of distance on the significance that might be attached to offers of compensation, we note that JFI Limited v Queenstown Lakes District was a case about residential development on the boundary of an outstanding natural landscape. The applicant offered conditions which included removal of wilding trees on its property and a financial contribution towards the removal of other wildings in the vicinity. In such a case the proximity of improvements to a landscape to the location of the adverse effect to be imposed has considerable significance. Where the adverse effect is on the significant habitat of an indigenous species, improvements to other habitats of that species might provide mitigation offsetting irrespective of proximity, provided the habitat loss does not cause over-reliance on a very small number of habitats, including the habitat improved.

[215] In concluding our survey of law relevant to the question of biodiversity offsets, we draw attention to one of six principles which the Environment Court found in Royal Forest and Bird Protection Society v Gisborne District Council338 to be consistent with the views expressed in JFI Limited, namely that:

Biodiversity offsets are inappropriate for certain eco-system (or habitat) types because their rarity, or the presence of particular species within them makes the clearance of these eco-systems inappropriate under any circumstances.

Forest and Bird considered that this principle applied in this case, to the mine site in general, or in the alternative to the Sticherus Ridge. BCL submitted that while the 78 losses of rare species cannot be offset, they are a proper subject for "compensation." We are not entirely convinced though, even if we do not consider the Heaphy qualifies as compensation, in the context of a discretionary activity unmitigated and uncompensated significant adverse effects are not necessarily a bar to consent.

[216] The form in which evidence on the biodiversity offset offered was presented to us did not assist the Court as much as it might have in evaluating the mitigation/compensation offered by BCL. This was for two reasons: the heavy emphasis in the evidence on a computer model put forward by BCL which claimed to show a surplus of biodiversity gains over biodiversity losses; and the emphasis of BCL witnesses on adherence to the Business and Biodiversity Offset Programme by the company in devising the compensation/offset package it offered. It is not entirely surprising that BCL, having framed its case in this way, the opposition parties responded to it in similar terms.

[217] The model, which was ultimately withdrawn, purported, we understood from submissions, to quantify (or perhaps support) the offset component of the wider package of environmental compensation being proffered by the applicant. To achieve this it would have required precise information about what the losses are likely occur, and what potential capacity would exist for recuperating these losses in the area set out for protection. The difficulty the Court found with this model, which in any event dealt with only one element of the environmental effects and compensation - that is on a limited number of fauna and flora- is well summed up in answers from Dr Brian Lloyd to Mr Davies: 339

Q And in the absence of good data as a general statement, so not necessarily related to the populations of these species, but as a general proposition is making a qualitative assessment a valid method of approaching a problem such as this?

A And I'm assuming, you make a qualitative, sorry was that a qualitative assessment wasn't it, was the word you used?

Q Yes

A Yes, so you make a qualitative assessment then you transform it into a quantity and then you manipulate the quantity using maths, I don't like that. No, in brief. 79

Q I'm going to have to put his question. Isn't that just the approach of Dr Ussher?

A Nicely asked.

[218] As to the offset programme, Forest and Bird called evidence from Dr AC van Meeuwen Dijkgraaf, an ecologist of 15 years experience. Some 29 pages of her evidence addressed the question of whether the EMP offsetting proposal met the standards of the Business and Biodiversity Offsets Programme ("BBOP"), as she interpreted it in a New Zealand context.340 Mr Williams challenged her with the legal proposition " ... there's actually no reference to this [BBOP standards] in the RMA?"341 Mr Williams' proposition is undoubtedly correct. But Dr van Meeuwen­ Dijkgraaf is hardly to be blamed for couching her evidence in this way when in opening the applicant claimed that it was moving away, in line with what it considered to be recent trends, from the more qualitative assessment which 42 characterised JFI Investmentl • Instead it focussed on the use of expert modelling based on the principles contained in the BBOP, and when Dr Ussher had discussed in some detail how the BBOP could fit within the RMA. 343

[219] The use of the model having been abandoned (rightly in our view), the task for the Court is to consider what would be the various adverse effects likely to result from the mine, to what extent they are proposed to be mitigated, and where no mitigation is possible, how relevant and how significant would be the compensation offered; then to evaluate all these matters in the light of the statutory instruments and the RMA. This has always been the role of consent authorities under the RMA. We think of this as "sticking to the knitting".

[220] While the model remained in evidence it generated a vast amount of detailed technical debate through evidence filed. The debates extended to many assumptions alleged to have been made as to inputs, the relative treatment of them as amongst themselves during processing through the model, and the consequent (un)reliability of outputs at the end of the modelling exercise. Indeed, it became apparent that this hearing was being used as a forum to settle vigorous technical scientific debates between 2 groups of ecologists as to appropriate modelling methodology. The Court is neither a peer review panel nor an arbitrator between factions disputing scientific or 80

computer modelling methodology. It is a consent authority whose duties are set by the Resource Management Act, including the duties in a case such as this to assess the strength or otherwise of the evidence about various species, eco-systems and biodiversity, to weigh the individual factors, to assess whether adverse effects must be avoided, remedied or mitigated, and to arrive at an overall broad judgment that serves the purpose of the Act as stated in section 5. The use of a model such as initially put forward in evidence, or the model advanced as technically competing with it, carried the significant danger of purporting to undertake our weighing exercise for us.

[221] We find that the following would be lost from the mine site:

• approximately 20 ha of sandstone pavement;

• approximately 15ha of pakihi wetland vegetation;

• approximately 2.8km of stream habitat for koura and aquatic invertebrates;

• approximately 10% ofthe habitat of three lizard species over the whole plateau;

• 0.1 ha of seepage wetland, a rare vegetation type in New Zealand;

• the existing rifleman population and its habitat for some hundreds of years;

• a high proportion of the 15-18,000 Powelliphanta patrickensis residing on the mine site; and

• fern bird and pipit for a period until the habitat re-establishes. We also expect some members of these species to perish accidentally during the operation of the mine.

• the curtailing of the natural habitat range of bird species such as kiwi.

• the loss of overall species richness, including as to the presence of some rare plant species. 81

• some loss of habitat connectivity including from removal of the headwaters of the Trent Stream344

[222] An exhibit produced by the applicant345 showed a list of 17 threatened and at risk plant species which would suffer net loss as a result of the mine. Of these 17 species, only two are likely to be able to be re-introduced to the mine site by planting, and the estimated likelihood of the species surviving VDT was high for 2 species; moderate for 8; low for 6; and nil for one species.

[223] BCL submitted that the appellants attempted to make too much of this in that they have implied a total loss. We did not read that implication in Mr Davies's submissions, but we do consider that that might be the case for a number of individual threatened and at risk plants.

[224] The Court received indirect advice by consent of the parties from Mr GR Davidson, the owner of Oratia Native Plants Nursery Limited, on the potential for propagating the nationally critical Sticherus tener, Euphrasia wettsteiniana (proposed to be classified nationally vulnerable), and the functionally extinct red mistletoe, Peraxilla tetrapetala. Mr Davidson advised that none of the genus Sticherus had proved easy in cultivation, although Sticherus tener was commercially available in Australia. He considered the transfer of the plant from the warm climate of Australia to the extreme climate of Denniston would be a high risk operation. 346 As to Euphrasia Wettsteinana, Mr Davidson had never been successful in growing the species; further, the attempt to reproduce the precise conditions in which the species exists on the mine site appeared to him to be fraught with difficulty.347

[225] Mr Davidson noted that a suitable host species for Peraxilla tetrapetala, mountain beech, existed in the vicinity of the site, however successful nursery propagation of Peraxilla would take many years of trial and error, and that descriptions of the existing specimens did not suggest ready availability of seed from that source. He considered that to attempt the temporary transfer of the host species with mistletoe attached with a view to subsequent relocation back to the mine site, would be a last resort?48

344 These bullet points focus on losses. It must be remembered, as we have discussed elsewhere, that there would be positive effects such as significant reduction of acid runoff from abandoned mines on the Plateau. 345 Exhibit 66 346 Mr Davidson, Evidence-in-chief, paragraphs [17]-[18] 347 Dr Davidson, Evidence-in-chief, paragraphs [19]-[20] 348 Dr Davidson, Evidence-in-chief, paragraphs [9], [11] and [15] 82

[226] In short, there would be some species that would be lost to the mine site, and there could be some local extinctions.

[227] The principal offset offered for these effects on the mine site is a predator and weed control programme over a 4,500 ha area on the Denniston Plateau. It is clear to us that there would be some benefits from this control to a number of threatened or at risk species on the plateau. That is because there is evidence of rats at moderate density in forested areas of the plateau in years when far fewer might reasonably have been expected. And we are satisfied that there were even more rats in areas just off the plateau proper,349 but at comparatively high altitudes. The evidence is that both riflemen and kiwi use the forested area on and adjacent to the plateau and mine site. We also recall that while no study has been made of fernbird's use of coal measures habitat, they spend much of the time on the ground in thick, but lower, vegetation. Dr Parkes's evidence is that ship rats are major predators of small birds, and take eggs and chicks of both arboreal and ground-nesting species. 350 We have no evidence that this general proposition would not apply in respect of the specific species on the Denniston. Introduced predators also take snails, even if a smaller percentage of patrickensis on Denniston than of other species in other habitats.

[228] Dr Parkes succinctly stated the problem which faced expert witnesses: 351

... the problem all expert witnesses face is that none of us know what the density of native animals would be in the absence of introduced threats. Persistence is not a substitute for this parameter, and extrapolation from other areas is risky given the unusual nature of the Denniston eco-system.

That is also the problem that faces the Court. We believe we can hold on the evidence, and we do, that native populations on the plateau are at lower densities than carrying capacity, and if there were no predators they would increase. We simply do not know by how much?52

[229] We accept Dr Parkes' opinion that masting events and responses of predators to them do occur at altitude, though probably less intensely on high altitude sites, and 353 that numbers of predators may be driven not only by masting • We add that we

, .. ..-·~~-~L--o'F"''~~ 349 Dr Parkes, Rebuttal, paragraphs [7] and [9] ~ ....~~,-;~---~~!:!.;f' 350 Dr Parkes, Evidence-in-chief, paragraph [22.1] 351 • / ., · Dr Parkes, Rebuttal, paragraph [33] A ., .~)'"" ,,vj 352 T ' t k 4 200 2& \~hi ;,r:. ranscnp , wee , page 92 ~{['(~;,t·¥r,jJ\~\ <§2 . '" lli P"ke., Robuttal, p'"""""h [22) "'d T=odpt, pogo 200 -:-:. j·\} •!.YJ'~~,'' ! <::<: ! .-· ' .. ' ,, ·:::0 ' . "j ,;J/.J]'f,; <:<;-; G? ''tl''w[(.;'''k'Ci W ~ .. ~n""t-~'J.1t~?

consider it unsafe to assume that the level of predator presence found in 2012 is the highest that has ever been reached or is likely to be reached.

[230] One of the understandable concerns of Forest and Bird in this case is that any biodiversity gains on the Denniston Plateau from weed and predator control would be rapidly lost by the extension of mining into other areas of the plateau. As a matter of law, it is not open to us to assume either that future resource consent applications for mining will be made or that if they are they will be granted. (We have recently issued a companion interlocutory decision354 holding that a possible neighbouring mine proposal of Solid Energy Limited is not part of the "existing environment"). BCL's chief executive, Mr Bohannan was commendably open about his company's longer term ambitions on the plateau,355 and its future drilling plans, so that the concern on the part of the appellants that:

(1) predator control has limited value over an area likely to be mined; and

(2) an appropriate area of the plateau should be secured from mining is unsurprising. This is underlined, we acknowledge by the apparent reliance on much of the balance of the Plateau as a refuge and "incubator" of relocated fauna.

[231] We cannot anticipate the response of a consent authority to a future application, if one is ever made. However, it would be surprising if it did not consider and give weight to the fact that enhancement of the biodiversity of an area was considered necessary to offset, or appropriately mitigate the effects caused by an earlier consented activity. We can say no more than that, and cannot of course bind a future consent authority on the question.

[232] As we have indicated, BCL is also offering to provide predator control in a 10,000 ha area in the Heaphy, along with a 3km buffer zone. The total area comprises some 24,000 ha of forest and other vegetation types that differ from those on the Denniston Plateau. It is a stronghold of the great spotted kiwi and of several Powelliphanta species (but not including patrickensis). In addition to common forest 84

species, the area also provides habitat for whio (blue duck), kaka, kakariki and robin, as well as lizards and invertebrates. 356

[233] Dr Parkes understood that BCL was proposing predator control by aerial 1080 baiting as the principal method of predator control along the Heaphy. He indicated that some native species present as relict populations, such as whio, great spotted kiwi, kaka and long-tailed bats might need additional protection until their populations gained resilience and suggested a ground trapping or baiting programme aimed at their principal predators, stoats in the case of the various bird species. That woul need to be included in conditions if consent is ultimately granted. 357

[234] Dr Ussher, restoration ecologist called by BCL, opined that the benefits to fauna in the Heaphy Biodiversity Enhancement Area were not needed to offset or compensate for adverse effects on fauna and their habitat on the mine site. That, in his view, was achieved by the predator protection programme on Denniston Plateau. We do not believe the evidence is certain enough to accept that assertion. Dr U ssher added:

Benefits to plant communities in the Heaphy BEA are the most relevant benefits for comparing against residual losses of plant communities in the EMP footprint; however an exchange ratio would be needed to account for differences between vegetation types at Denniston and the Heaphy.

Ultimately broader considerations around sustainable, landscape level management of broad eco-systems and the benefits that this brings beyond a reductionist approach may outweigh the need to engage in biodiversity accounting practices as described here.

We suspect Dr Ussher was offering this justification for the Heaphy package, which he acknowledged was in large measure a "like for unlike" form of compensation.358 The Heaphy package in our view offers protection for important fauna in the Heaphy as compensation for the loss of significant flora on Denniston. That may be important since the extent of benefits to fauna on Denniston from the predator control package is, on the evidence of Dr Parkes, not known.

[235] Dr Elliott stated that BCL's proposed control programme for the Heaphy catchment could have substantial biodiversity benefits, but that to realise them, more 85

frequent control of rats at low altitudes would be needed, along with increased trapping or poisoning of stoats?59 However, he considered that would not provide biodiversity gains, because the Department of Conservation would undertake the work regardless of any contribution by BCL.360 Dr Elliott's opinion in this matter could have carried more weight were he in a position to give it. It is clear to us that while pest control operations in the Heaphy have been conducted in the past, Dr Elliott is not in a position to give any assurances on the funding of such activities in the Heaphy for the future. 361 The increased certainty provided by the BCL offer is in our view a significant additional element which we should have regard to, if it is appropriate to have regard to the Heaphy package at all.

[236] Forest and Bird's prime submission was that the proposed Heaphy BEA does not come close to the desirable qualities set out in JFI Limited for matters relevant and reasonably necessary to determine the application?62 The area to be enhanced in the Heaphy is approximately 100 kilometres from Denniston Plateau, where the effects to be compensated for would occur, and is separated from it by two intervening ecological districts. Further, there are questions over the degree of public consultation and transparency by which the amount of compensation was calculated.

[23 7] On the surface, the "desiderata" in JFI Limited would suggest that we give limited significance to the compensation package in the Heaphy. To the extent that species are benefitted which would suffer adverse effects on Denniston, we consider that to be compensation in kind, and necessary, since there is uncertainty about the extent to which the Denniston populations will be benefitted by the predator control there. But in terms of the Denniston flora, the compensation would be what Dr Ussher acknowledged to be "unlike for like." That could be given weight only on the basis of the much broader approach to the management of eco-systems to which Dr Ussher referred in his initial evidence. We consider the different types of effects at issue in JFI Limited and this case give us scope to accept as offset mitigation benefits to those same species that are adversely affected by the EMP proposal.

[238] The draft conditions suggested by the planners to secure the compensation offered by BCL would be as follows: 363

359 Dr Elliott, Evidence-in-chief, paragraph [139] 360 Dr Elliott, Evidence-in-chief, paragraph [144] 361 Transcript, Week 4, pages 241-242 362 Forest and Bird, Closing submissions, paragraphs [313] and [319] 363 Joint expert witness statement, planning caucus on draft Conditions 11/12/12, page 75 86

144. The Consent holder shall undertake a programme of weed and animal pest control (to achieve biodiversity enhancement) within:

(a) The 500 hectare offset mitigation area (the Denniston Permanent Protection Area ("DPPA") and

1. 30% by land area of pakihi open Brunner coal measure wetland;

2. 30% by land area of manuka shrubland on Brunner coal measures (scrub);

3. 30% by land area of forest on Brunner coal measures; and

4. 10% by land area of sandstone pavement or, alternatively (second preference) 10 hectares;

(b) The 4,509 ha area on and adjoining Denniston Plateau shown in figure 2, appendix 3 (the DBEA) in order to provide a weed and animal pest control buffer around the DPPA;

(c) An area of approximately 10,000 ha of the Heaphy River with an additional 3 km buffer zone as shown on figure 1, appendix 3 (the HBEA).

145 The Consent holder shall ensure a form of permanent legal protection from land disturbance of any type within the DPPA.

[239] Further conditions would require BCL to have a biodiversity enhancement management plan applying both to the Denniston and Heaphy areas and to establish a trust, or other agreed funding mechanism, to ensure funding was available for biodiversity enhancement activities after the closure of the mine, for fifty years from the implementation of the consent in the case of the DBEA, and for thirty-five years in the case of the HBEA. 364

[240] Subsequent to the preparation of those draft conditions, BCL proposed to set aside as DPPA some 745 ha on the plateau .. It noted that to provide 500 ha contiguous area as set out in the planners' evidence would be difficult. It submitted that the 745 ha includes sufficient forest to comprise 30% of 500 ha, though not of the total proposed area, and suggested the most convenient change to the conditions would be the addition of the word "approximately" after the word "comprising" in condition 87

144(a)(i)(a).365 If consent is ultimately warranted, we are inclined to agree with that solution.

[241] Proposed condition 145 creates decidedly greater problems. Four of the caucusing planners, Messrs Welsh, Purves, Ridge and Ms Montgomery expressed the view that the condition was unenforceable, and in submissions neither BCL nor Forest and Bird supported the condition in the form it was proposed. 366 The most significant problem with the condition is that the land is not in BCL ownership.

[242] Forest and Bird submitted that as presently worded the condition is uncertain. The land is already protected to the extent that activities on the land, and access to carry them out, require the approval of the Minister of Conservation. If what is meant is a degree of further protection, the addition of the land to Schedule 4 of the Crown Minerals Act would require the consent of both the Department of Conservation and the Ministry of Economic Development, neither of whom are parties to this proceeding. 367 We accept that without their consent we cannot bind them.

[243] BCL agreed that it would be inappropriate to impose a condition which is reliant on the agreement of two third parties in circumstances where even if agreement can be reached, the process of negotiations would be lengthy.368 It sought to have the condition amended to a "best endeavours" condition requiring BCL, prior to undertaking any work under the consent "to use reasonable endeavours to establish a legal mechanism to protect the DPPA from open-cast mining." If so it would be required to provide evidence of the legal mechanism and if not, to show that its best endeavours discussions had exhausted the possibilities?69 This is problematical and would need futiher work. That work could possibly be undertaken if we reach the stage of generally favouring consent, in which, as discussed with the parties towards the end of the hearing, the Department could be invited to consider an alignment of possible conditions of consent in this proceeding with any terms and conditions it might have in mind if it was prepared to allow access to lands under its control.

/'··;~\ 1 " • I :.PC:.) li;;;:~~~t"'::%<~-~~)·I ;,JS i ~ '/;I r....._y),:r..:Ti.i';..,.._.. Vi 1 \ '"1/r, t;z:,, '-- ..... __ .,(( ...'~\ <' ~-,:,~~~;- COUYf'i "'::'::'/' ~ll~.~ .. ~-~ ,.~ .. ~-<;:· ...-~ 88

[244] Counsel for Forest and Bird helpfully set out the approach the Court has taken to conditions precedent. He cited the following passage from Westfield (NZ) Ltd v Hamilton City Council: 370

Technically it has been held that there is a critical distinction between two ways in which a condition is framed. One requires an applicant to bring about a result which is not within the applicant's power, for example that the applicant construct a roundabout on a nearby roadway when the roadway is controlled by Transit New Zealand. The other stipulates that a development should not proceed until an effect has occurred, in this example that the roundabout has been constructed.

[245] The Court held that conditions falling into the latter category were valid whereas those falling into the former were not. 371 We agree. Counsel submitted that in the case before us, BCL's proposals were contingent on consent from third parties and had not demonstrated that consent would be fmihcoming.

[246] It should not have escaped the parties during the course of the hearing that the question of whether consent to the EMP would be forthcoming could in part turn on the adequacy of conditions. The new condition 144 as proposed by the planners' caucus appears to us an acknowledgement that something more is needed than simply the DBEA in the form outlined by Mr Bohannan, in particular some assurance that the biodiversity offsetting which the applicant witnesses considered necessary would not be undermined by activities which negated the benefits gained from it. One of the options open to the Court, if, after considering the planning documents and exercising the broad overall judgement required under Part 2, it considers that consent might be appropriate on the right conditions, might be to issue an interim decision and invite the applicant to negotiate what agreements it can and indicate what conditions it is prepared to offer before finalising its decision. An offset that has a high risk of being temporary might not be adequate. Equally, other avenues might become apparent, and the approach mentioned above concerning alignment of processes might help that course.

[247] The appellants' objections relate not only to the legality of condition 145, but to its merits. They rely on a statement in the evidence of Dr Ussher that land offered as an offset must have a credible threat against it,372 and contend that the 89

condition as proposed by BCL does not require the DPP A to contain coal and be under such threat.373

[248] After its closing submissions were written, BCL defined more precisely the area for which it proposed to suggest further legal protection. In the last two days of the hearing it produced a map374 which purported to show that the area does contain coal. It accepted that the vast majority of the DPPA, as mapped in coal values, shows very low values, and if there is coal of any value in it the vast majority of it is of low value. Mr Welsh could not tell us whether or not mining it was a practical proposition. This is all rather speculative, and might not advance matters greatly.

[249] We remind ourselves however that the purpose of additional protection is not to deny potential miners coal, but to provide the best possible conditions for indigenous eco-systems with indigenous flora and fauna to flourish. We are not persuaded by BCL's submission that only open-cast mining could damage the eco­ systems of the DPP A. We accept that the phrase "land disturbance" could capture minor activities. But the purpose of an offset is to mitigate adverse effects on one site by enabling improved environmental values on, in this case, another site in the vicinity.

[250] We have not reached the point of forming fixed views about the precise form of protection that would be desirable. We consider it desirable that mechanisms be explored and active steps taken to bring the separate but parallel consenting processes to greater consistency if at all possible. We stress that the Court has no part to play in the processes that are not before it, but would hope that all concerned would be assisted if a co-operative approach were to be taken. As we have said, we do not as yet have fixed views about mechanisms, but we urge BCL to think carefully about the purpose of the DPPA, and what is necessary to secure the achievement of that, rather than simply concerning the effects of open-cast mining. As we indicate later, it is at least possible that the question of whether consent is able to be granted could turn on this issue. 90

The statutory instruments

[251] We identify the following statutory instruments as relevant to the question of whether consent should be granted:

• The West Coast Regional Policy Statement

• The proposed West Coast Regional Land and Water Plan

• The Regional Land and Riverbed Management Plan

• The Regional Plan for Discharges to Land

• The proposed Regional Water Plan

• The Buller District Plan

The Regional Air Quality Plan contains relevant provisions which are, in the opinion of all the planners, satisfied by the conditions of consent proposed.375 We consider that plan no further.

[252] The relationship of the regional documents and their status is rather complex. The proposed West Coast Regional Land and Water Plan is basically an attempt to bring together the other three plans relating to water, land and riverbeds and discharges to land. Subsequent to the writing of primary evidence, but before the hearing, the Council released its decisions on submissions on this plan. We understand from the planning witnesses that in terms of the provisions relevant to this case, the numbering of the provisions has changed, but not their substance. At the time evidence in chief was written, the Regional Land and Riverbed Management Plan was awaiting decisions of the Environment Court on Variation 1. That decision was subsequently made and decisions have recently incorporated into the plan. The plan became operative on 24 September 2012.376 91

[253] We understand from the planning witnesses that the provisions relevant to this case are all incorporated into the proposed Regional Land and Water Plan,377 and we consider them as they appear in that document. We propose to consider the provisions of the relevant documents by topics rather than go through each document seriatim with the repetition that would necessarily involve.

[254] Consistent with our finding on effects, we find that nothing in these instruments relating to cultural or heritage matters stands in the way of consent.

[255] The Buller District Plan notes that mineral resource investigation and utilisation is important to community well-being and viability, but must be carried out consistently with the Resource Management Act. It indicates that difficulties associated with land ownership and access to the mineral resource are a significant concern, but on the other hand mining can impact significantly on water and land resources.378 The twin objectives in terms of mineral resources are:

• to enable people and communities to provide for their economic and social wellbeing through the efficient utilisation and development of mineral resources;379

• to safeguard the life-supporting capacity of air, water, soil and eco-systems and avoid, remedy or mitigate adverse effects from the use and development of mineral resources. 380

[256] Two of the implementing policies are largely repetitive of the objective?81 Three others concern the rehabilitation of mining sites. One is simply to require rehabilitation of mining sites where practical. 382 Another is to give preference to indigenous species and further preference to local genetic stock for rehabilitation planting,383 and another is to require measures to protect water quality and eco­ systems, and to provide for rehabilitation of disturbed areas "to generally their original condition or another suitable condition as approved by counci1".384

377 Joint Expert Witness Statement, Planning Q 5, page 7 378 Buller District Plan ("BDP") Issues 4.5.1 and 4.5.3 379 BDP Objective 4.5.4.1 380 . ····"·, BDP Objective 4.5.4.2 ... <~ '."-,t~__ Ot r_"'" 381 BDP Policies 4.5.5.1 and 4.5.5.4 ~(<- 82 BDP Policy 4.5.5.2 / •,-.:. >'"'- -, J8 .I bn c~:~l st! 3 : BDP Pol~cy 4.5.5.6 / rr1 0c\N,~L"''~~<~~?.~) 0 BDP Policy 4.5.5.5 '\ z, \ ·; n t\,lf-.:-;'~S\[.J ;z I .,~. ) .• ('{lJc,.lJt(r.,; -~\ -<:t: r ·::r.) J , ··• JJ~IJ -:-.1; \ "(:;:./ \ r:,;'it;, . j;

[257] There is a very close correspondence between the way the District Plan and the Regional Policy Statement address questions concerning the use of mineral resources. There is an objective of not unduly hindering the evaluation, use and development of mineral resources while sustainably managing other natural and physical resources.385 Flowing from it is a policy to ensure that the effects of mineral extraction are managed so as to be consistent with objectives policies and provisions found elsewhere in the Regional Policy Statement, (WCRPS)?86

[258] The first instance hearing commissioners, after considering the provisions of the Buller District Plan made the following comment:387

All of the planning evidence we have heard has made clear to us that mining does have an omnipotent kind of treatment in the Buller District Plan, no doubt because of its importance to the West Coast Region and Buller District as a whole.

[259] Ms Allan disagreed with that interpretation, and so do we. 388 The activity enjoys a restricted discretionary status, albeit that discretion is rather wide. That contrasts with the fully discretionary status often conferred upon mining in rural zones in other plans. However such a status contemplates a situation where the effects of the activity are such that other considerations may prevail and an application for resource consent could be declined.

[260] However we consider Ms Allan went too far when, referring to the two BDP objectives, she wrote that utilisation of mineral resources is provided for only if the effects do not threaten the life supporting capacity of, in this case, water and eco­ systems.389 Objective 4.5.4.2 does not have priority over Objective 4.5.4.1 as the words "only if' imply. Nor does it act as a veto. The wording of the objectives reflects the different parts of section 5 of the Act. Frequently there will be competing considerations and a tension between the two objectives as there are often competing considerations in terms of Part 2 of the Act. What is required in both cases is a broad overall judgement which keeps both objectives 4.5.4.1 and 4.5.4.2 in mind. In terms of the plan, there is considerable flexibility in the extent and type of rehabilitation required which may well vary to match the significance of the environment and eco-

,.•.• ~":;, .. L ... ";•·.,...... _ 385 West Coast Regional Policy Statement ("WCRPS") Objective 16.1 ,.·' ( S'i~r\ UF r/', 386 WCRPS Policy 16.3 !' ,}.(. --·-~ l/'p" 387 "-'// "' ( · \ First Instance Decision, paragraph [469] / 388 j ( \ 1 , . ~i.., d" 1 Ms Allan, Evidence-in-chief, paragraph [305] rr kc~\5;'>N!7y~ (::-) \389 Ms Allan, Evidence-in-chief, paragraph [305] :;.:;! \ 'q\T!J?ti;lr i·;. :~ ( ~ !,.i'•-\ci."'·'"··~;., ··t I -··· . . t(·<~ "~ b!.)' ftV/ ---t ' 'rJ) 'i-e'•;,\','~l].;:·'i.jf,'J{~\'1 /.:9~ ;?,; ". 1,{!1->.j.Q.lffi':,;,', /\ '.!:/ /(.~%)~ /,..--.'!·~ \ '~:C-ou~~~ "-....._.,..__,~-"' ... 93

systems disturbed. We return to the question of where the balance between these two objectives lies after considering the other statutory instruments.

[261] The statutory instruments recognise that land based activities can have an adverse effect on water quantity and quality, and aquatic habitat and ecosystems. The appellants did not contest the evidence called by BCL from Drs Stark and Jellyman. But we recall that Dr Jellyman's evidence was that only 4 km out of 6.76 km of streams would remain after rehabilitation of the mine site, and that Dr Stark, while not doubting that aquatic invertebrates would re-colonise the re-developed streams, did not consider there was sufficient evidence to predict the time-scale within which recovery would occur or its trajectory. It is not unreasonable therefore that these effects should be examined in the light of the statutory documents.

[262] The Regional Land and Water Plan contains an objective of avoiding, remedying or mitigating adverse effects from land disturbance so that the region's water and soil resources are sustainably managed?90 A number of relevant policies derive from it, including a policy to manage the disturbance of land and vegetation in order to avoid, remedy or mitigate adverse effects on, inter alia:

• the stability of land, river banks, river beds and coastal margins;

• water quality ... and in-stream values;

• natural character and aquatic eco-systems;

• soil depth and soil fertility; and

• significant indigenous vegetation and indigenous fauna. 391

There is a further policy to manage earthworks including mining, in circumstances where they such activities could lead to release of acid rock drainage, heavy metals or precipitation of iron oxides,392 while another policy is directed to riparian margins for the purpose of maintaining or enhancing water quality, promoting soil conservation and protecting the natural character of wetlands and rivers from inappropriate use and 94

development.393 There is also a policy of encouraging retention, maintenance or planting of appropriate riparian vegetation?94

[263] Arguably the waterways which will drain the ELF constitute new land drainage activities, so we refer to a policy of managing their development to ensure the maintenance of the stability of the bed and banks ofthe receiving body, and long-term water quality including in-stream values, and to protect from inappropriate use and development the natural character of rivers and wetlands.395

[264] The objective and suite of policies deriving from it find support in an objective of the Regional Policy statement to avoid, remedy or mitigate degradation of water resources resulting from the use or development of the beds and banks of the rivers, and a policy which is framed in the indicative that adverse effects including soil loss, contamination of soil, ground or surface waters, long term decline in the life supporting capacity of soil and land, and damage to or decline in ecosystems including the quality of aquatic ecosystems and other in-stream values, landscapes and habitats, will be avoided, remedied or mitigated.396

[265] The Buller District Plan is also concerned about the effects of land use on water quality and quantity in the district's rivers. It has an objective of promoting land use activities which maintain or improve the quality of water and do not adversely affect its quantity in the district's rivers, to safeguard its life supporting capacity.397 That objective is supported by policies to recognise, and wherever possible protect, inter alia, significant ecological sites398 and to protect water resources from adverse effects of land based activities. 399 There is also in this section of the District Plan a policy relating to wetlands, which we consider it convenient to discuss in connection with the range of policy relating to that important subject.400 A further policy is to protect and enhance riparian margins of streams and rivers.401 We also devote a separate sub­ section to a consideration of effects on significant indigenous vegetation and significant habitats of indigenous fauna. 95

[266] In one respect the proposal will implement these policies better than the status quo. The area of the mine permit contains extensive underground workings from the historical Escarpment, Coalbrookdale and Whareatea mines. Infiltrating rainwater flows through these workings to the mine portals, and will continue to do so until the workings are exposed by the opencast mine. Dr Ellis's evidence is that the water discharged is likely to be acidic. When the underground workings are intercepted by the opencast mine, any water will drain to the pit, and eventually be pumped to the Mine Influence Water surge sump and then the MIW Water Treatment Plant before discharge. 402 In other words, the quality of water from the historical discharges will be improved by the treatment it receives.

[267] Table 3 appended to condition 257 reflects compliance limits for appropriate levels of pH, suspended solids and various metals at the monitoring site WM2 recommended in the evidence of Dr Hickey, a research scientist specialising in environmental toxicology called by Buller Coal.403 Dr Ellis acknowledged on further questioning that it would be prudent to include arsenic in this suite. Dr Stark's evidence was that if those limits were met macro-invertebrate communities in the Whareatea River would not be adversely affected.404 Dr Jellyman's evidence was that such a condition would be adequate to maintain stocks of koura, and that the entry of waters from tributaries downstream of the mine would maintain the diversity of fish fauna found in the lower reaches of the river.405 We find that the objectives and policies of the various statutory instruments would be met in terms of the discharge to the Whareatea. We rely on these same witnesses for our finding that the water take from the Waimangaroa River would have no significant adverse effects on the macroinvertebrate or fishery values of that river. 406

[268] In terms of the reconstituted streams, Mr Kingsbury's evidence was that the success of VDT close to the stream edges would be crucial to prevent weed invasion and to maintain water temperature ranges compatible with stream life.407 The proposed condition to ensure successful direct transfer of vegetation reads as follows: 408

402 , " ...... """ Dr Ellis, Evidence-in-chief, paragraphs [44][46] //'~:V\l or'·:..._ 403 Dr Hickey, Evidence-in-chief, paragraphs [69]-[107] 404 I'-.'!~"' ;;J -- /i;,j~ Dr Stark, Evidence-in-chief, paragraph [169] 405 1 "·: ,, < \ Dr Jellyman, Evidence-in-chief, paragraph [52] 6 / (~ \ .,.:.:~t•o'l'l1 ~ , '-_,.t-1 '-., >·b·.l•ctlw"-2~'/ \// '\.~--t./ ·,~ (.:·~~ I <~?V; cou~' "~~~/' ' ...... _, ,.-,~ ...... 96

Subject to access and topographical constraints, suitability of vegetation to VDT and suitable placement zones being available in the ELF, the consent holder shall VDT existing streamside vegetation in areas to be stripped to the banks of new stream channels in the ELF.

It appears to us that this condition is somewhat loose on a matter that the applicant's rehabilitation expert considers crucial, particularly where only 4 km of stream is to replace 6.76 km, and we consider that the various policies relating to adverse effects on in-stream values, natural character and aquatic ecosystems would require it to be tightened, as does the specific BDP policy on riparian margins.

[269] In any event, the uncertainty of the length of time for recovery and the eventual species composition in the streams restored on the ELF creates a degree of tension between the proposal and these same policies, and adds to the need to ensure that the best possible conditions for aquatic life in the new stream beds are created.

[270] Wetlands in the region have been the subject of careful and extensive consideration by another division of this Court, resulting in a number of changes to the policy framework that has now been incorporated into the regional planning documents. Almost the whole of the Denniston Plateau is identified as a Schedule 2 Wetland in the Regional Land and Water Plan. 409 Schedule 2 Wetlands are those likely to be ecologically significant.410 Although the application pre-dates the various policy provisions made after the Environment Court process, we are required pursuant to s 88A(2) to have regard to these provisions.

[271] The actual significance of wetlands on the West Coast is to be determined by applying a set of ecological criteria set out in a further schedule, Schedule 3. In terms of this schedule, a wetland triggers the criteria for ecological significance if it meets one or more of four criteria, namely ecological function, representativeness, rarity and distinctiveness.411 Ms Bodmin's evidence was that each of the types of wetland on the plateau, seepages (including flushes), Chionochloa rubra fenland and Chionochloa juncea pakihi all meet one or more of these criteria, and that bot~ seepages and elevated pakihi wetland are significant at a nationalleve1.412 97

[272] The PL WRP contains an objective to recognise and provide for the protection of the natural character, indigenous biodiversity and other values of wetlands in the region.413 The policy for wetlands in Schedule 2 meeting the criteria in Schedule 3, is to protect their values by controlling activities in them and on their margins to ensure their natural character and ecosystems are sustained.414

[273] We also note that effects on wetlands are a concern in other sections of the PL WRP, although if there is any conflict in them with the specific provisions of the wetland section of the Plan, the provisions of that section are to have precedence. There are general provisions relating to water bodies, for example, in the natural and human use values section an objective to protect water bodies (which include wetlands) from inappropriate use and development by maintaining and where appropriate enhancing their natural and amenity values, including natural character and life supporting capacity of ecosystems415 and an objective in the surface water quantity section of the plan to retain flows and water levels in water bodies sufficient to maintain their in-stream values, natural character and life supporting capacity.416

[274] There is a policy in the natural and human use values section which we find difficult to interpret, and so cite the relevant parts in ful1: 417

3.3.1 In the management of any activity involving water to give priority to avoiding in preference to remedying or mitigating:

(i) adverse effects on: ...

(d) The significant natural character of wetlands ...

The explanation to this policy states:

[w]hen considering these activities priority must be given to avoiding adverse effects in preference to remedying or mitigating them. The avoidance of adverse effects will be sought in the first instance.

Where adverse effects are considered to be unavoidable, a resource consent may be declined, or if granted may be subject to conditions requiring 98

unavoidable adverse effects to be remedied, mitigated, or, in the case of diversion, reclamation or damming to be appropriately compensated for.

[275] We find the policy in this form difficult to apply to a proposal which cannot avoid adverse effects because clearly, while it prefers adverse effects to be avoided altogether, it does not suggest that where that cannot be done, the proposal resulting in unavoidable effects must be declined. In such a case a decision maker will simply need to consider the adequacy of the remedy, mitigation or compensation as would be the case in the absence of the policy.

[276] We also note a policy of avoiding, remedying or mitigating adverse effects on the natural character of wetlands418 but assume that because the wetlands affected by this proposal are agreed to reach the threshold for significance in a number of ways, the earlier policy to which we have referred applies.

[277] The provisions of the PL WRP flow from and give effect to an objective and policy of preserving the natural character of (inter alia) wetlands contained in the Regional Policy Statement. The policy indicates that in deciding whether development is appropriate, matters to be considered will include, along with such matters as the extent of public benefit from the development, and the degree and significance of actual, potential and cumulative effects on natural character, the practicality of locating the development away from wetlands where adverse effects on natural character can be avoided, remedied or mitigated to a greater extent.419

[278] The Buller District Plan also contains a policy of protecting and enhancing wetlands, and another of encouraging the retention of existing indigenous vegetation on the margin of wetlands.420 In terms of mining activity, effects on wetlands and riparian margins are a matter over which the Council has reserved its discretion,421 and in the matter of vegetation clearance and incidental earthworks covering more than 15 ha in any three year period, the Council has reserved its discretion in similar terms.422

[279] It is against these policies and provisions that we must assess the likely loss of around 15 ha of pakihi wetland, 0.16 ha (on Mr McCracken's revised proposals) of fenland, and approximately 0.1 ha of seepages. Along with the wetland areas lost are 99 rare and endangered flora such as Euphrasia wettsteinana which add to their significance for rarity.

[280] We do not doubt that consent in this case would diminish the indigenous biodiversity values and natural character of the wetlands on the mine site. There is clearly a level of inconsistency between the proposal and a number of objectives and policies relating to wetlands in the statutory documents.

[281] That level of inconsistency was such that the planner called by the respondent councils, Mr Purves, was prepared to use the word 'contrary' to describe the relationship between the proposal and some objectives and policies in both the regional and district plans. 423 However, as we have noted the regional policy statement, to which the district plans must give effect, includes in a policy424 to preserve the natural character of wetlands from inappropriate subdivision, use and development the following statement:

In deciding whether... development [is] inappropriate, matters to be considered will include the following ...

c) the degree and significance of actual, potential and cumulative effects on natural character that arise ...

e) the practicality of locating any development away from the ... wetlands ... and their margins where adverse effects on natural character can be avoided, remedied or mitigated to a greater degree or extent

f) the extent to which any ... development provides a benefit.

[282] We are inclined to accept the evidence of Dr Ussher that the provision of greater security for an outcome that is ecologically beneficial constitutes a type of offsetting. Nevertheless there are elements of loss that cannot be fully mitigated or offset. There is in some respects quite some tension between the proposal and some relevant objectives and policies in the regional and district plans, even if the word contrary is too strong.

[283] The significance of that tension is somewhat reduced by the evidence of Ms Bodmin425 that seepages and pakihi are well represented elsewhere on the plateau, and 100 in that respect if additional legal protection can be gained for the DPP A, overall there might be some benefit to those ecosystems. The reduction in the loss of fenland following a redesign of the parts of the project during the course of the hearing to under a third of the extent which Ms Bodmin thought a significant adverse effect also gives us some comfort, that while there are adverse effects on the natural character and ecology of wetlands they are not such as on their own to necessitate refusal of consent.

[284] The parties are agreed that the mine site contains significant indigenous vegetation and is a significant habitat of indigenous fauna in terms of the criteria for significance set out in both the WCRPS and the BDP. As a result of that a number of policies in terms of the RPS, the Land and Water Regional Plan and the BDP are relevant to the proposal.

[285] The RPS contains an objective of protecting areas of significant indigenous vegetation and significant habitats of indigenous fauna. 426 The implementing policy is to recognise and provide for such protection and sets out a list of sixteen matters, any one of which might determine whether areas and habitats are significant.427 As we have indicated the question of significance is not disputed. There is also a policy to promote, and where necessary require land use practices which avoid remedy or mitigate offsite adverse effects on areas of significant vegetation or significant habitats of indigenous fauna, including reducing the discharge of contaminants into water.428 A further policy promotes the containment and reduction of noxious and potentially noxious pests and weeds where they are likely to destroy or degrade indigenous flora and fauna and reduce biodiversity.429

[286] The policy in the Land and Water Management Plan to which we have referred preferring avoidance to remedy or mitigation of adverse effects, includes amongst the matters of concern significant indigenous vegetation and significant habitats of indigenous fauna. 430 That plan also contains an objective of avoiding, remedying or mitigating adverse effects of riverbed activities on indigenous biodiversity and ecological values.431 There is an implementing policy to manage a variety of activities in, on, under, or over the bed of any. river so that they do not cause or 101

contribute to adverse effects on significant indigenous vegetation and significant habitats of indigenous fauna. 432

[287] A section of the BDP also deals with ecosystems and natural habitats. There is an objective to protect areas of significant indigenous vegetation and significant indigenous fauna and to recognise their importance both to the quality and character of the physical environment and the wellbeing of Buller's people and communities.433 The policies which flow from this objective anticipate the compilation of a schedule of significant natural areas determined on the basis of a series of criteria. 434 That has not been done. In the interim, there is a policy in the form of a statement that the Council will (sic) make decisions on resource consent applications that provide for the protection of significant indigenous vegetation and indigenous habitat.435 That largely repeats a policy to take into account adverse effects of land use activities on natural habitats and ecosystems when considering development proposals that impact on these areas, and a further policy of protecting areas of significant natural vegetation and significant habitats of indigenous fauna from inappropriate subdivision, use and development. 436

[288] We note that the proposed weed management and predator control activities over the wider plateau area are well aligned with the regional policy of promoting the containment of noxious pests and weeds. The benefits of these programmes for the habitats of fauna, though of an extent difficult to determine, suggest to us on the balance of probabilities that, with appropriate conditions securing additional an appropriate level of protection for the DPP A or equivalent, the proposal will not be inconsistent overall with the objectives and policies as they relate to significant habitats of indigenous fauna. In terms of significant indigenous vegetation, there are likely to be losses of rare species, even with the most careful and thorough attempts to replicate soil conditions and existing hydrology on the mine site. Dr Glenny's comments on the problems of creating habit suitable for the rarest species are in our view realistic. So there remains significant inconsistency between the proposal and the policies seeking to protect indigenous vegetation.

432 PLWRP Policy 5.3.2 433 BDP Objective 4.8.6.1 434 BDP Policies 4.8.7.4 and 8.8.7 5 435 BDP Policy 4.8.7 6 436 BDP Policies 4.8. 7 1 and 4.8. 7. 7 102

[289] In terms of landscape, we have determined that the plateau and the mine site are not part of an outstanding natural landscape or feature, on the basis that they are not sufficiently natural. However, the BDP in its landscapes and natural features section consistently uses the phrase "outstanding landscapes and natural features" in its statement of the key issue, and the objective and relevant policy.437 Mr Purves when cross-examined on the issue, considered that simply an error in the plan, noting also the use of the phrase "outstanding natural features and landscapes" in the broader statement of the issue.438 Having given the matter careful consideration, we agree. In consequence these sections of the BDP do not in our view apply to the proposal.

[290] There will be adverse effects on the visual amenity of the landscape as a result of the mining activity, and for some considerable time afterwards, but we found comparatively few provisions in the statutory instruments dealing with amenity. In the BDP there is an objective of ensuring the overall integrity and character of the rural environment and the productivity of rural land resources is protected, while enabling rural communities to provide for their social, economic and cultural wellbeing.439 An implementing policy is that land management practices which maintain or enhance the productive values of soils and amenity and character of the rural area be encouraged and promoted.440 The Regional Policy Statement includes recreational and amenity values amongst a long list of matters to be considered when making decisions on water levels and river flows. 441 But that is the limit of the concern of those documents for amenity.

[291] The Land and Water Regional Plan contains a series of policies to avoid, remedy or mitigate adverse effects on (among a sizeable list) amenity values from the management of any activity involving water,442 lake and river bed activities,443 activities of various kinds in, on, under or over the bed of any lake or river.444 The protection of wetlands is to be recognised and provided for by managing effects, inter alia, on amenity values.445 And the discharge of liquid and solid contaminants onto 103

land is to avoid remedy or mitigate adverse effects on amenity values (among other things).446

[292] The interception and treatment of acid mine drainage from existing mme workings will give effect to one objective of the LWRP. The removal of existing streambeds and their replacement by mine workings is an adverse effect of the activity on the water bodies concerned and their amenity, and in terms of the District Plan it is difficult to argue against the view that the mining activity, and the interval required for the mine site to recover, constitute a loss of amenity for a temporary if protracted period. In respect of the various policies relating to amenity values there is a level of inconsistency between the proposal and the relevant planning documents. The significance of that inconsistency is reduced by the very limited attention given to amenity in these documents.

[293] Among the types of adverse effects which the relevant planning documents state should be avoided, remedied or mitigated are effects on recreational values and attributes.447 Ms Allan's evidence was that both in the short and the long term the effects of the proposal on recreation would be moderately to severely adverse.448 However, BCL called evidence from Mr RJ Greenaway, who has tertiary qualifications in recreation management (amongst other things) and considerable experience in recreational planning and tourist development. His conclusion that the proposal represents some minor losses to recreation and tourism amenity, from visual and noise effects and displacement of local mountain-biking opportunities, but also some gain from the offering of an additional visitor option, and this was not challenged by cross-examination.449 We consider nothing in the policies of the statutory documents concerning recreation stands in the way of consent.

[294] Mr Welsh sought to invoke the provisions of the infrastructure section of the BDP in support of the proposal.450 However we agree with Mr Purves and Ms Allan that the infrastructure to which these provisions refer is infrastructure which serves the wider district. We accept that the proposal does not infringe the objective of protecting infrastructure resources from activities that establish nearby, but we do not consider the objective of providing for the efficient development, operation and 104 maintenance of infrastructure throughout the district relates to what is essentially an industrial adjunct to mining activity.451

[295] Prior to discussing our overall finding in terms of the relevant regional policy statement and regional and district plans, we consider the general assessment criteria for discretionary activities in the BDP. We note that these criteria apply in all zones and to all activities. In addition to the relevant objectives and policies of the plan and any other relevant policy document or plan or proposed plan, 452 we are required to consider the extent to which standards for permitted activities have been exceeded453 and the likely effects both adverse and beneficial on some 18 matters.

[296] Of these 18 matters, we have already considered at some length effects on natural habitats and vegetation, landscape and the integrity, resilience and functioning of ecosystems. The same applies to effects on the natural character of wetlands, rivers and their margins, water courses, streams, and water quality. We have discussed the proposals of the applicant company to rehabilitate the site, and the limitations on that imposed by the nature of the site, its climate and its existing hydrology and ecosystems, and described the proposed use of infrastructure by the applicant; and its proposals to remove effluent from the site. We have also evaluated the contribution of the proposal to the economic and social welfare of local communities and their ongoing sustainability.454

[297] We do not consider that the proposal rmses any questions in terms of neighbouring land uses, the safe and efficient provision of parking and vehicle and pedestrian access, the settlement pattern of the district, the potential future use of any renewable resources or the living environments of people in their houses.455 Further, the applicants have agreed by memoranda that tangata whenua issues and noise related issues are not at issue in these proceedings.456

[298] Two assessment matters relate to hazards. One concerns the degree of exposure of buildings, structures and people to natural hazards, 457 and the other effects on community health and/or safety from the use, storage or transport of

451 Mr Purves, Evidence-in-chief, paragraph [6.64], Ms Allan, Evidence-in-chief, paragraphs [323]-[324] 452 BDP Rule 9 .2.1 453 BDP Rule 9.2.2 454 BDP Rules 9.2.3.2-9.3.2.5, Rules 9.3.2.1 0-9.3.2.11 455 BDP Rules 9.2.3.12-9.2.3.15, Rule 9.2.3.18 456 BDP Rules 9.2.3.8-9.2.3.9 457 BDP Rules 9.2.3.6 105

hazardous substances.458 The latter of these matters is particularly concerned about areas where numbers of people are gathered, such as residential zones, schools and community facilities, but its application is not restricted to these.

[299] The hazardous substances stored and used on site include explosives and chemicals used for water treatment. Others in the area would be exposed to the risk of dam failure and to potential danger from forms of coal transport. Outside workers are also likely to be exposed to risk.459 In their initial decision, the commissioners either noted that such risks were dealt with under other legislation or could be regarded as of limited probability.460 Ms Allan agreed with that evaluation. We concur. These assessment matters do not stand in the way of consent.

[300] One of the assessment matters relates to visual amenity. It suggests that the design, siting and appearance of buildings should have regard to and be visually appropriate to the natural landscape and scenic character of the locality, particularly in areas of high scenic value.461 While the site is not part of an outstanding natural landscape, the tenor of the evidence of all the landscape architects who gave evidence in this case is that it and the whole Denniston Plateau possess very high amenity values. Dr Steven and Mr Brown consider that the adverse effects on visual amenity will be in the range of high/moderate-high during the period of operating, then reducing over a period of 10+ years to low, low-moderate.462 Given the clear evidence about slow growth rates of vegetation on the plateau, we consider the moderation of effects on amenity values could take even longer. Consideration against the visual amenity assessment matter tells somewhat against consent.

[301] There is an assessment matter relating generally to natural or physical resources but more particularly to the initiation and acceleration of soil erosion and the deposition in water courses or coastal water of vegetation, soil, rock or debris.463 BCL produced extensive evidence as to the stability of the ELF it intended to establish, and the measures it proposed to take to secure this. We have noted that the ELF is designed to be stable in a 1 in 150 year return period earthquake.464

458 BDP Rule 9.2.3.17 459 ~- .• ~.~ Ms Allan, Evidence-in-chief, paragraph [143] 46 <;. f\l. First Instance Decision ....c <· ,)• OF ';·{, , 461° ~..(.:.· _...-----·-"' ··0' BDP Rule 9.2.3.7 / .,/~... ,,..!~, ,;:"~~·, ::~ Mr Brown, Mr Steven, Joint Experts Conferencing Statement Landscaping Q15 b) 1 f{i).\\ \'.'i:J/:-1 (,) BDP Rule 9.2.3.1 464 ; '-J.! ( ~.f /i.T?i~.1~~'(\. ~ Dr Ellis, Evidence-in-chief, paragraph [134] and Table 7 ·.. :::~ I "\~;·~;,;,;:,;~ ··~; --J . 1 - ~!.,-j

[302] The final assessment matter concerns the use of mineral resources in a way that meets the reasonably foreseeable needs of future generations.465 We note that sustaining the potential of minerals to meet the reasonably foreseeable needs of future generations is specifically excluded from the purpose of the RMA. 466

[303] None of these assessment criteria have priority over any other. They are matters to be considered in reaching a final outcome, but none of them require the decision maker to be satisfied about any particular matter. Like the objectives and policies we have considered, they raise competing considerations in the context of this case.

[304] We have also noted the wide range of matters over which the District Plan reserves discretion on applications for mining and vegetation clearance and the incidental earthworks associated with these activities in the Rural Zone. We do not consider they raise any issues that we have not dealt with extensively elsewhere in this decision.

[305] In terms of the overall relationship of the proposal to the statutory planning documents, the planning witnesses offered widely divergent views. Mr Welsh opined that the project was consistent with the appropriate objectives and policies of the regional planning documents which, in his view, facilitated mining; likewise in terms of the BDP, he considered the appropriate objectives and policies were met.467 Ms Allan considered the project as a whole either contrary to or inconsistent with relevant objectives and policies of the BDP, the PLWRP and the plans which preceded it; it also raised issues in terms of the RPS. 468

[306] Mr Purves, whom we considered brought the most balanced assessment in terms of the provisions of the district and regional planning documents, considered that the proposal was contrary to the wetland objective of the PL WRP, and to the District Plan objectives of protecting areas of significant natural vegetation and significant habitats of indigenous fauna, along with two policies that support that objective.469 But overall he was of the view that the proposal was "within the 107

spectrum of consistent to neutral" with respect to the objectives and policies of the regional policy statement and the respective regional and district plans.470

[307] For the reasons we have given, we hold that the proposal is somewhat inconsistent with, rather than contrary to the provisions on wetlands, significant indigenous fauna and significant habitats of indigenous fauna to which Mr Purves referred. But these are provisions of considerable significance to this case. We accept that provisions which enable mining and encourage these types of mitigation/offsetting proposed pull in the opposite direction. Overall we find that the provisions of the plans are evenly balanced with respect to the proposal rather than consistent.

S 104(c) Other matters relevant and reasonably necessary to determine the application

The National Policy Statement for Freshwater Management

The National Policy Statement for Freshwater Management was gazetted on 12 May 2011, and took effect after the application for Resource Consent was made by BCL. Section 55 of the Act specifies that a local authority must amend its statutory documents either to include specific policies or objectives set out in the statement, if so directed, or otherwise to give effect to the NPS. In decisions released on the PLWRP on 24 September 2012, the West Coast Regional Council introduced new policies to give effect to the National Policy Statement. Included amongst these are policies which limit the application of the new policy to applications for resource consent made after 1 July 2011. Nevertheless, we consider that we can have regard to the statement under s 104(1)(c).

Ms Allan considered two objectives of the NPS particularly relevant. One objective is that the overall quality of fresh water within a region is maintained or improved while:

(a) protecting the quality of outstanding freshwater bodies;

(b) protecting the significant values ofwetlands; and 108

(c) improving the quality of freshwater in water bodies that have been degraded by human activities to the point of being over-allocated.

A second objective is simply to protect significant values of wetlands.

[308] It is clear that on the mine site, areas of seepages, Chionochloa rubra wetlands and pakihi would be lost, along with vegetation that gives them significant rarity value. Those wetlands that remain, or rather are reinstated on the ELF, would take time to develop values of the type found in those they replace, so there is clearly a degree to which wetland values are not protected. There may be some mitigation of that if the DPPA is given protection or assistance beyond what currently exists, so that the values of wetlands over the plateau as a whole are better protected. However, the wetland provisions of the NPS tell against the proposal. We also note that the overall objective of A2 is to maintain or improve the overall quality of fresh water within a region. The interception of water draining from old mine workings and its treatment prior to discharge to the Whareatea River assists in achieving this, a significant benefit.

[309] The mine would also have adverse effects on the ecosystems associated with the 6.76km of ephemeral stream-beds within the mine site. Although the applicant's witnesses have given considerable thought to the design of replacement drainage of the site, only 4km of waterway would be re-created, and the timeframe necessary for it to develop qualities resembling those of the existing streams is uncertain. Mr Purves noted that some ofthe objectives of the NPS, or parts of them, can be achieved by the proposal and some not. He considered that the EMP is "on the inconsistent side" of the objectives as a whole, but not contrary to them. We agree with that.

Te Rununga o Ngai Tahu Freshwater Policy

[31 0] Ms Allan referred briefly to this document. We note the agreement of the joint experts' conference (planning) that key aspects of this document have been incorporated into the proposed Regional Land and Water Plan. Further, the parties have agreed that tangata whenua issues in this case are not in contention.

Precedent 109

S 290A- the first instance decision

[312] We have read carefully the thorough decision of the commissioners at the first instance hearing. However, we do not interpret the Buller District Plan in quite the same way as them with respect to its approach to mining. Further, there have been a number of quite significant changes to the proposal since the first instance hearing. The area over which weed and predator control is proposed has increased, and there is a proposal to establish a DPP A, presumably with greater security against open-cast mining than presently exists. Moreover, both applicants and appellants have carried out significant research between the two hearings, so that the Court has before it much better evidence than did the original commissioners, along with the benefits of cross­ examination. As we have indicated, the commissioners' decision is very considered, and we have had quite considerable regard to it, but ultimately it is the evidence before us that is more important.

Part2

[313] The relevant matters under s 104(1) are to be had regard to subject to Part 2 of the Act. Most of the issues still in dispute between the parties concern Part 2 matters, and we have already discussed the detail of them in our discussion of the effects on the environment of allowing the activity, and the various planning documents. In this section of the decision we bring together our various findings to assist us in forming our broad overall judgement of how the Act's purpose of promoting sustainable management may be best recognised in this case.

[314] The applicant accepted in opening that there would be adverse effects from mining and transporting coal, which relate to matters of national importance under ss 6(a), (c), (e) and (f), and to matters to be given particular regard under ss 7(a), (aa), (b), (c), (d), (f) and (g). It submitted that it has avoided, remedied or mitigated these effects to the maximum extent possible, short of not mining at all. We now examine whether it has done so sufficiently for consent to be allowed. We examine the various factors that contribute to our decision in ascending order of significance, dealing first with s 7 matters, then the matters to be recognised and provided for under s 6, and finally the overall purpose of the Act set out in s 5. We record that no party alleged that the principles of the Treaty ofWaitangi were involved in this case.

,r:;~:S\S~]N'~~ [315] Neither kaitiakitanga nor the ethic of stewardship figures prominently in this /1 /~~:) r~;t~) .M! \case. We do note that Te Runanga o Ngata Waewae support the application. We f ,., .., I' .~:~::/.-,.~;,';':!;. (<.;~j· 0 I t 0; ·~I 'Y~\·~tf~\}/~:~. z 1 ....., \ I <·~l ·~·:·Jo'''•l'.' "".C :=.:..., \ .._1·· <~i :~.t~~~lr,r~4 ...... J I \ ..<...-·f;;,) \ \o"'';.''~'.!·~ '•~\'''l:t"l-,;>/ ·?;•7•·\~~~~• .., ;J"'t'1 I I, \ ~:;~:..- tS··~7jrp.s..1)-r' '""' ,::;~~''- ~~ 7 ·

deduce from that, that iwi also consider that their relationship with their ancestral lands, water, taonga and the other matters we are to provide for under s 6( e) is not prejudiced by this application. We are also conscious of the ethic of stewardship in our role as decisionmakers. That role often involves protecting resources, but in our view responsible stewardship also allows for use of resources in the appropriate circumstances. Whether the circumstances are appropriate in this case is a decision best made in the context of the overall purpose of the Act.

[316] Under s 7(b) we are to have particular regard to the efficient use and development of natural resources. Intrinsically, the use of a resource to generate income, employment and a range of other benefits is a more efficient use than simply to hoard it. Ms Allan urged that the concept of efficient use and development also included consideration of intangibles in the sense that the effect on such matters as amenity and ecosystems ought to be considered under this concept, before countenancing their diminution. However these are all matters requiring separate consideration, before deciding where the balance among conflicting considerations lies.

[317] "Amenity values" is a term describing those natural or physical qualities and characteristics of an area that contribute to peoples' appreciation of its pleasantness, coherence, and cultural and recreational attributes. Mr Greenaway's evidence, unchallenged by cross-examination or expert counter-evidence, was that the proposal would represent some minor losses to tourism and recreational amenity. Those losses are brought into our overall judgement, but are of very limited moment.

[318] However, in terms of the effects on visual amenity and the amenity of the area, it is common ground that the effects will be significant, for a moderate period at least. Part of what is a landscape reverting to nature will become part of a 24 hour, 7 day per week industrial activity which will involve progressively stripping a 157 ha block of land, reconstituting the landform, and planting vegetation that will in some cases take very many years to reach anything resembling the present condition. Mr Brown considered the effects on amenity during the mine operation would be moderately high, reducing over a period of 10 or more years to low, low/moderate levels. Having regard to the evidence about the climate, soils and local ecosystems, we find that the timescale for reduction of effects will be rather longer, particularly inasmuch as ..... ,. ".·~····"'·· growth rates on the plateau are slow, and the Denniston soil needs to remain poorly /<~;.>~~~-~--.?_!_~ ~) drained and relatively unproductive if the eventual results of rehabilitation are to / ,./f._s:, t{~~:) :~;ft \1'esemble as far as possible present vegetation patterns. ' I . --··v~;·~)·i•Jf-1'1 0\ i. .: ( ·..; ( .. i+~>~J~lR~t· ~ ; 1 • -:::.: \ . ' ' '• .;~~!· v.l rr~.'{! -..,I ! . <''J \ i:'J'''''•\•'.'C*:n~,~~~ ;;'<:/"' '\, (;{·. ',, ·~~ti.l;~}•• ~!~~.&,~~. '\} \ '"'/'<·'···-.' ~/ ·x.'c\ ··-;- /1·? -:---: . ~~(:\,., ·-....~ coun \ ,../· ...... ' ...... ~·' 111

[319] Section 7( d) requires particular regard for the intrinsic value of ecosystems. We have no doubt that if the mine is consented on the conditions proposed there will be a reduction in the value of ecosystems on the mine site. Connectivity and the current assemblages will be disrupted or lost by changes such as the loss of some plant species are likely to be permanently lost to the site, and some of those have considerable rarity value. The range and volume of invertebrates will be reduced for a considerable period, along with the various eco-system services they provide. We accept that elsewhere on the plateau weed-control and predator control will assist in protecting and enhancing the eco-systems present, but the very considerable likelihood of the complete loss of rare plant species from the mine site and the Barren Valley gives us particular concern in these terms, and we urged BCL during the hearing to consider whether adverse effects on that area could be avoided if the proposal were otherwise consented.

[320] The Brunner Coal Measures as a whole is an endangered ecosystem471 within New Zealand, and so the diminution of the value of a part of them brings into play consideration of the finite characteristic of natural and physical resources (s 7(g)). Our concerns in this area could be somewhat allayed if additional protection could be obtained from BCL's proposed DPPA or equivalent. That, after all, represents over 40% of the total area of the plateau.

[321] In terms of the natural quality ofthe environment, the proposal cannot be said to maintain it for the reasons we have outlined in our discussion of amenity values and the intrinsic value of ecosystems. That statement is tempered by the inclusion within the definition of environment of the social and economic conditions which affect other matters contained within the definition, including people and communities.

[322] Section 6 of the Act sets out a series of matters we are required to recognise and provide for as matters of national importance. Among these is the protection of historic heritage from inappropriate use and development (s 6 (f)). A number of historic sites are located within the EMP including, among others, the remnants ofthe underground Escarpment Mine, Birchalls Co-operative party mine and the Plateau Mine. An archaeological authority is required from the New Zealand Historic Places Trust before disturbance of these sites is permitted. A proposed condition of consent requires the preparation of an historic heritage section within the ecology and heritage management plan. This section is to set out the means by which identified potential 112

adverse effects are to be avoided and requires the provision of a senes of contributions to the conservation and interpretation for visitors of the history of the area. The appellants indicated by Memorandum that they did not contest issues under s 6 (f) and we consider the proposal at least neutral with respect to such matters.

[323] We have determined that the proposed EMP site is not part of an Outstanding Natural Landscape; so s 6(b) is not at issue in these proceedings.

[324] There is clearly an adverse effect of the proposal on significant habitats of indigenous fauna. On the mine site and the CPP the land would be excavated and the vegetation removed. For some species relying on forest habitat it would be a century or more before similar habitats to those presently existing would be available on the mine site. While some species would be left behind or transferred in VDT, they will have poorer habitat for a significant period. Where they are completely removed it would be many years before re-introduction can be contemplated (50 years in the case of lizards, for example). We have also carefully considered the evidence as to the likely scale of losses of various species, and consider that the relatively small percentage losses established must be factored into the context of what is proposed. Numerically (not however forgetting particular and systemic ecological values discussed in this decision), percentage values of loss are likely to be of the order of (and constitute minor effects in numerical terms):

• 8.4% of wetland on plateau disturbed, and 1.8% lost472

• If 10% of the plateau is disturbed, and if a conservative assumption is made that all lizards within that area are lost (which we think most unlikely), then the maximum effect on the lizard population is of the order of 10%473

• A similar situation for invertebrates474

475 • 3 to 4 % of snails affected even though mine footprint 10% , noting however that up to 9% of the Denniston sub-population could be affected. 113

[325] Offset mitigation for these effects is offered in the form of a predator control programme, which BCL intends to fund for at least fifty years on the Denniston Plateau, and additional environmental compensation in the form of a similar programme in the Heaphy River area for 35 years. We have found that predator control is likely to provide benefits for important indigenous species in these areas, though the extent of these benefits is more speculative. While we do not consider there is sufficient evidence to sustain the claim of net gain for fauna, particularly on Denniston, on the balance of probabilities we think the gains elsewhere on the plateau will largely mitigate the adverse effects of the proposal on fauna on the mine site.

[326] That is not the situation with areas of significant indigenous vegetation.

[327] A number of rare species, notably two Sticherus species, Euphrasia wettsteiniana and Peraxilla tetrapetala are likely to be lost. In the case of pink pine, even if a proportion of the species survive VDT, specimens hundreds of years old would be substantially cut back to achieve their translocation. Some species, on the applicant's own evidence, would take centuries to regain their present condition. These are significant effects. We reiterate the evidence of a witness called by the applicant, Dr Glenny amongst others, that the "Sticherus Ridge" is outstanding. We return to that matter in our final assessment under s 5. But we indicate here that we do not consider such effects offset, or compensated for. Significant areas of indigenous vegetation are not protected. And we add that the relevant subsection of the Act, s 6( c) does not include the qualifier ''from inappropriate subdivision, use and development."

[328] That qualifier is included ins 6(a) which requires us to recognise and provide for the preservation of the natural character of (inter alia) wetlands and lakes and rivers and their margins. As we have indicated, there will be adverse effects on pakihi wetlands, seepages and a small area of Chionochloa rubra wetland which would be removed entirely during the mining operation. Likewise, 6.7km of streams would be removed during mining, to be replaced by 4km of streams on the ELF. It is acknowledged that the natural character of the reinstated streams would for some time be less than that now existing. Recolonisation by bryophytes is expected to be slow, . and Dr Stark, while confident that invertebrates would re-establish, does not have the ,,,.- .. ·-·~., 1 ,,;<( ,,\'-· /' S.t}1.~~ .,F !:t'~··'lJ' evidence to suggest a likely timeframe. .... / -, '·" <:\ Af t'JJ~··, t!lf l Q "'; (iff~-:),,;f:k:tt£:~?1 '[ ' r,;,):.:: •. ... : z \'··f~ .. ___ , -D.. ~''l('y~,~-1 .. < ~~ ' 'b _ {4

[329] For the sake of completeness we add that some of the affected tributaries of the Whareatea River are ephemeral, and it is unlikely that the loss of stream length would have any effect on water quality and quantity further downstream. Further, the take proposed from the Waimangaroa would in our view leave the natural character of that river intact.

[330] We return to the question of whether the adverse effects on wetlands result in the development of the mine being "inappropriate." The adjective calls for a value judgement. Ms Bodmin's evidence that both pakihi and seepages would remain well­ represented on the plateau and the efforts BCL has taken to reduce the extent of chionochloa rubra fenland affected, considerably reduce the degree to which the proposal constitutes development from which wetlands require preservation.

[3 31] Overall, in terms of s 6, we find that the requirement to protect areas of significant indigenous vegetation tells against the proposal. The requirement to recognise and provide for the preservation of wetlands from inappropriate development also does so, but not as strongly.

[332] Buller Coal properly referred us to the judgement of the High Court in NZ Rail v Marlborough District Council citing the following passages:

The recognition and provision for the preservation of the natural character of the coastal environment in the words of s 6(a) is to achieve the purpose of the Act, that is to say to promote the sustainable management of natural and physical resources. That means the preservation of natural character is subordinate to the primary purpose of the promotion of sustainable management. It is not an end or an objective on its own but is accessory to the principal purpose ... It is certainly not the case that the preservation of natural character is to be achieved at all costs. The achievement which is to be promoted is sustainable management and questions of national importance, national value and benefit, and national needs must all play their part within the overall consideration and discussion.

The same considerations apply when considering wetlands under s 6(a) and significant indigenous vegetation under s 6( c).

[333] In turning to s 5 of the Act, we remind ourselves from that decision that:

... the application of s 5 involves an overall broad judgement of whether a proposal will promote the sustainable management of natural and physical resources., that approach recognises that the RMA has a single purpose, and such a judgement allows for comparison of conflicting considerations, and the scale and degree of them and their relative significance or proportion in the final outcome. 115

In this case we find the task more than usually complex. The proposal provides significant enablement in the form of high quality employment in the Buller District. It provides enablement to the New Zealand economy by stimulating a "shuffling upwards" in the labour market. These benefits are not to be underestimated.

[334] Alongside this enablemeht, the proposal, if implemented, will have adverse effects of some proportion on areas of significant indigenous vegetation, including locally and nationally endangered plant species and ecosystem. Together with these effects there are effects on wetlands, perhaps of lesser significance because of what will remain on the plateau, and a considerable reduction for some time in the amenity of the mine site and its surrounds. In addition to these adverse effects which are not avoided, remedied or mitigated, the life that the rehabilitated ecosystems support on the mine site will be less fit, rich and diverse than those presently existing. We hold that to be a relevant matter under s 5(2)(b ).

Interim judgment

[335] Overall this case is quite finely balanced, rather as was found by the first instance hearing commissioners. So finely balanced indeed that while our present inclination is to grant consent, much will ultimately turn on whether appropriate conditions can be worked out and whether some others can be offered by the applicant on an Augier (volunteered) basis. These matters have been discussed extensively throughout this decision. Our preliminary view as just said is that with such conditions appropriately framed, consent is likely. But we share the view of the respondent that the conditions presently offered to the Court would not alone satisfactorily underpin consent to the application. For the guidance of the parties, we set out our concerns.

Concerns about conditions

[336] Put plainly, we consider that the draft as presently offered by BCL contain too many "best endeavours" type conditions, with limited certainty of outcome.

[337] Before we turn to these, we mention again the issue of the Barren Valley and the Sticherus Ridge. By Minute of 16 November last year, we asked BCL to consider ,,;·~t~L" '()·~--....>· whether there were viable alternatives to the development of the ELF in the Barren ,.ff (, ;)\- I J;, ,\~'/------~('''! alley, the use of that valley as the initial overburden location, and the placement of (· I i~ ,., 1SI! ( ~;~:~~~~l~.~.-~wf{ ~ 1 h volumes of material there that the valley would be overtopped, and the \ ,c_ \ '<

shoulders, including the outstanding Sticherus Ridge, covered. BCL provided a brief of evidence from Mr McCracken in response to this request.

[3 3 8] In summary, Mr McCracken considered that relocation of the initial overburden site would be detrimental both economically and environmentally. In economic terms the protection of the Barren Valley walls would require a buffer strip of 10 metres at least, sterilising the coal underneath it and reducing the coal available for mining. Coal deposits away from the valley floor are mapped as of high and moderately high value. The concept would also increase costs by increasing the distance between the mining site and the temporary ELF location and doubling the amount of overburden needing to be re-handled. Environmentally, Mr McCracken noted that the increase in areas of the ELF requiring temporary rehabilitation would reduce the area of ELF available for VDT during the penultimate year of mining.

[339] We have come to the conclusion that the logistics and likely consequent cost of endeavouring to preserve these features, which are essentially just off centre in the mine footprint, would on balance be too great.

[340] For the present, BCL proposed three conditions to deal with rare and threatened plant species on the mine site, including Sticherus species Peraxilla tetrapetala, Celmisia simi/is, Pseudowintera traversii and Euphrasia wettsteiniana. These require the consent holder to survey the mine site for these species, define habitat characteristics, and prior to mining transfer these species by VDT or hand transplanting to an area of suitable habitat either on the mine site, or if no such area is found there, to an area outside the mine site. The consent holder is then required to monitor the transplanted species and "manage their survival".

[341] We do not doubt that BCL would conscientiously implement these conditions. But in the case of at least four of the named species, the consensus amongst ecological experts, including Mr Davidson who is most experienced in the cultivation of rare plants, is that the likelihood of successful transplantation is low. We consider that in the event of consent, the most probable outcome is that these rare plants will be lost. That does not mean that the most strenuous attempts should not be made to achieve successful transplantation. It does mean that in reaching our overall judgement on whether consent should be granted, and if so on what conditions, we should not factor

. ,>···· ·'" •. ""· .. in successful provision for the survival of these plants as part of the equation. ·!·""'··· c<.'.f· l t; ... ,,, ./.v <. ,)\.n • vr >· ·,, f .<.':!_~/ __..~...._ 'ril. .\

11'''~!~l (~;(~''~·\:,~·"·''/ d~\r<'i'-) ~lu<'" c)\ t ~ :;:.:; 1\ (.ki;'·;l.:'~)i/; :2:. ~ ··::: .':\'<'(\:,, ;~j';l.(:;j ""F../ -;;r.J ' > \.l.!·-'i·li7l'''l1 ~-J \· ? ,--t~:~....:.n.,..:c.•i>,~·. \ .1J ?) . c ., " ··/;-~""'"''''" v'<~ ,,,.,_ ''"~.'"'... , l'\j(j": ;f,'t'j'·--... / •:\ <'ly'("';-----:\f:..\~ ~.Q_~~~~~/ 117

[342] During the course of the hearing a number of ecological and rehabilitation expert witnesses convened to discuss what conditions, if consent were granted, could best ensure that the rehabilitated site would bear as close a resemblance as possible to the site as it exists now in terms of flora and vegetation. In addition to Mr Kelvin Lloyd, those attending included three witnesses called by the applicant, Ms Bodmin, Mr Overmars and Mr Kingsbury. By invitation Dr Mark Ellis, the hydrologist called by the applicant, also attended for a period one afternoon. That group proposed the following consent conditions, which it said had the potential to reduce significantly the uncertainty related to the long-term persistence of vegetation types:

(159) Information on the hydrological regime shall be collected across the EMP, particularly in relation to pakihi vegetation and the associated localised ponding areas. Required information includes evapo­ transpiration rates and water level fluctuations (piezometers, tensiometer or similar).

(160) The hydrological regime results should be used to model the proposed pakihi vegetation wetlands to verify whether a similar hydrological environment will be created. If a similar hydrological environment is unable to be created as envisaged, further engineered solutions will be investigated.

(161) Information on soil moisture (tensiometer or similar) shall be collected within both forest types (mountain beech-pink pine forest and mixed beech forest) within or adjacent to the EMP.

(162) Information from the forest soil moisture should be used to model the proposed rehabilitation forest to verify whether a similar soil moisture environment will be created. If a similar soil moisture environment is unable to be created as envisaged, further engineered solutions will be investigated.

[343] The planners considered these recommended conditions and advised us:

We do not think the hold points will work in practice when they link to modelling and engineering solutions relating to resolving uncertainty. These hold points could effectively lead to the consent not being able to be executed. This is a matter that goes to the decision making of the Court. 118

[344] The conditions proposed by the rehabilitation caucus are unsatisfactory in the form they are written. For a start, we do not accept the use of the word "should", introducing as it does too much uncertainty. The word "shall" in the jussive is far clearer. But the rehabilitation experts are striving to ensure that the hydrological regime, which it is agreed is essential in ensuring that as much as possible of the present vegetation is re-established, is reproduced as closely as possible. The applicant's experts regard that as important, and so do we.

[345] Conditions of consent require an Engineered Landform Management section of a Mine and CPP operations plan to provide for an ELF be produced with a low permeability layer of a specified maximum hydraulic conductivity, and a minimum thickness of cover varying according to slope. Consideration could be given to allowing or requiring these maxima and minima to be varied if the survey of the mine shows that variation would be more likely to produce the desired ecological outcomes. We consider the applicant might usefully give thought to how the intentions of the rehabilitation caucus can be given effect.

[346] Conditions need to address the management of effects (and securitisation) in the event of suspension of activities once commenced.

[347] We tum finally to the conditions applying to the proposed DPPA, and particularly the proposal to require the consent holder to "ensure a form of permanent legal protection from land disturbance of any kind within the DPP A." We recognise and have already alluded to the problems with this condition as it stands having regard to outcomes of the planner's caucus on conditions. We have also referred to BCL's proposal that the condition be amended so that it, in consultation with the Ministry of Business, Innovation and Employment, NZ Petroleum and Minerals and the Department of Conservation, it use its reasonable endeavours to protect the DPP A from future open-cast mining.

[348] We accept that BCL cannot give effect to the condition that emerged from the planners' caucus. One option for us is of course to accept the submission of the appellants and attach no significance to it in the final outcome. But we have noted the evidence of Dr U ssher that averted loss is a mechanism for generating offset benefits which counts the gains made when an area of land is shifted from a higher to a lower If that shift were 119

[349] However when he moved from the general discussion of averted loss to the particular application before the Court, Dr Ussher wrote:

I understand that such a process to set aside land with recoverable coal beneath it would require negotiations between the licence holder (BCL), DOC and the Ministry of Economic Development. Such negotiations are likely to be lengthy and the outcome uncertain.

In view of that there are strong reasons not to attach significant weight to a "best endeavours" condition.

[350] From at least some time during the hearing, BCL was aware of and supportive of a proposal for a DPP A. It was open to it at least at that point to commence negotiations with the other parties whose consent to greater protection than currently exists is necessary. The Court does not know whether such initial negotiations have occurred. It is something we would like to hear about before finalising our decision, subject to what follows.

[3 51] We reiterate that we consider consent to the EMP can be achieved. We invite the parties to consider, preferably by discussion and negotiation, the changes to the proffered conditions they consider appropriate. We are prepared to work with the parties in hearing or in conference to see what can be done to facilitate consistency of decision-making in the various strands that presently might be sitting uncomfortably together. We reiterate that we cannot make decisions for or on appeal from the other agencies. However, the further processes suggested above might assist, or this Court's mediation service could help carry matters forward constructively.

[352] We direct the parties to confer and endeavour to agree a timetable for completion of the case, starting with the preparation of a schedule of items we have held must be further addressed and conditions to be refined or added. We ask that a joint memorandum be filed by 19 April.

[353] One final matter in connection with substantive matters is that last year Judge Newhook issued an interlocutory decision476holding that the Court as decision-maker in this case cannot have regard to the effects on climate change of discharges into air of greenhouse gases arising from the subsequent combustion of the coal extracted in reliance on the consents whether [... "outside New Zealand ... or within"]. That 120

decision has been appealed to higher Courts, and a decision is presently awaited from the Supreme Court. The parties proceeded with the present substantive hearing on the basis that if Judge Newhook's decision on the climate change aspect was overturned, the substantive hearing could be re-opened to address the matter excluded. Leave remains in that connection.

Costs

[354] The question of costs is reserved, and can be fully determined after the issue of a final decision. Our preliminary view at this stage is that given the presence of aspects of the case running in both directions (favouring consent on the one hand, and telling against it on the other), the finely balanced favouring of consent, and the extent to which changes to the proposal have been introduced before and during the hearing, that awards of costs would probably not be appropriate.

SIGNED this 2- 1 'day of 2013

For the Court

LJNewhook Acting Principal Environment Judge