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In the High Court of New Zealand Auckland Registry I Te Kōti Matua O Aotearoa Tāmaki Makaurau Rohe Civ-2013-404-5224 [2018] Nz

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In the High Court of New Zealand Auckland Registry I Te Kōti Matua O Aotearoa Tāmaki Makaurau Rohe Civ-2013-404-5224 [2018] Nz IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE CIV-2013-404-5224 [2018] NZHC 2550 BETWEEN TE ARA RANGATU O TE IWI O NGATI TE ATA WAIOHUA INCORPORATED First Plaintiff AND RIKI MINHINNICK Second Plaintiff AND THE ATTORNEY GENERAL OF NEW ZEALAND for/on behalf of the CROWN First Defendant CONTINUED OVERLEAF Hearing: 21 – 22 May 2018 Appearances: No appearance by or on behalf of the plaintiffs S Kinsler and S Tandon for First Defendant J Hodder QC, T Smith and A Wicks for Second and Third Defendants/Counterclaim Plaintiffs H Wilson and J Taylor for Counterclaim Defendant Judgment: 28 September 2018 JUDGMENT OF POWELL J This judgment was delivered by me on 28 September 2018 at 4.30 pm pursuant to R 11.5 of the High Court Rules Registrar/Deputy Registrar Date: TE ARA RANGATU O TE IWI O NGATI TE ATA WAIOHUA INCORPORATED & ORS v THE ATTORNEY GENERAL OF NEW ZEALAND for/on behalf of the CROWN & ORS [2018] NZHC 2550 [28 September 2018] AND NEW ZEALAND STEEL LIMITED Second Defendant AND WAIKATO NORTH HEAD MINING LIMITED Third Defendant AND HERITAGE NEW ZEALAND POUHERE TAONGA Counterclaim Defendant [1] The counterclaim plaintiffs, New Zealand Steel Ltd and Waikato North Head Mining Ltd (“New Zealand Steel”), mine ironsands on land known as Maioro, located on the North Head of the Waikato River. The ironsands are mined pursuant to a Deed of Licence from the Crown dated 3 June 1966 (“the Licence”), with mining operations ongoing since 1968.1 [2] The Licence was issued under the Iron and Steel Industry Act 1959 (“ISIA”) of which s 3 relevantly provides: 3 Right to prospect or mine for ironsands in ironsands area vested in Crown (1) Except as otherwise provided by this Act and notwithstanding the provisions of any Act or of any Crown grant, certificate of title, lease, or other instrument of title, the right to prospect and mine for ironsands in any ironsands area is hereby vested in Her Majesty, subject to the provisions of this Act, and no person, other than the Minister, or a person authorised under this Act by the Minister, shall, after the commencement of this Act, prospect or mine for ironsands in any ironsands area. (2) The Minister, without further authority than this Act, may carry on prospecting or mining operations in respect of ironsands in any ironsands area. (3) The Minister may by writing under his hand authorise any person to exercise any of the rights or powers conferred on him by subsection two of this section subject to such terms and conditions as he thinks fit and for that purpose the Minister may from time to time, on behalf of Her Majesty, enter into agreements with any person in order to give full effect to the provisions of this subsection. [3] Both the ISIA and the Licence provide that the land subject to the Licence is managed by the Crown as a state forest, and that prior to any mining operations New Zealand Steel gives notice to the Crown which is then required to clear the trees from the land to enable mining operations to proceed. [4] The ISIA was repealed from 1 October 1991 by s 361 of the Resource Management Act 1991 (“RMA”). Despite its repeal ss 106 and 107 of the Crown Minerals Act 1991 (“CMA”), enacted at the same time as the RMA, provided that 1 New Zealand Steel Ltd was the original licensee pursuant to the License but its interests under the License were assigned to Waikato North Head Mining Ltd pursuant to a Deed of Assignment of Mining Licence between New Zealand Steel Ltd and Waikato North Head Mining Ltd dated 20 October 2008. The assignment was consented to by the Crown through the Minister of Energy. every “authorisation given, agreement entered into, and grant of rights under the Iron and Steel Industry Act 1959” became an “existing privilege” and continued to have effect “as if the Act which applied to the privilege … continued in force”.2 [5] In the course of 2013 an issue arose between New Zealand Steel and the Crown as to whether resource consents under the RMA were necessary before the Crown could proceed to remove the trees from the land preparatory to the land being mined. In New Zealand Steel Ltd v Attorney-General (“the first New Zealand Steel decision”) New Zealand Steel submitted the effect of s 3 of the ISIA was no further authority was required for either forest clearing or ironsand mining operations, and that as the effect of that section was preserved by s 106 of the CMA, no resource consents were necessary before tree removal could occur.3 In response the Crown considered because the obligation was on the Crown to remove the trees, the “existing privilege” held by New Zealand Steel was not applicable. As the Crown itself had no existing privilege, it had no power to undertake forestry clearing without first obtaining resource consents under the RMA. [6] Finding for New Zealand Steel, Kós J concluded that prior to the commencement of the RMA and CMA the ISIA had created “a separate statutory regime authorising [the ironsand mining]”, and that regime included the whole bundle of rights necessary to carry out the iron sand mining operation.4 [7] As a result Kós J made the following declarations:5 (a) the grant of rights under the Iron and Steel Industry Act 1959 contained in the 1966 Deed of Licence from the Crown (as Licensor) to New Zealand Steel Ltd and its successors and assigns (as Licensee) included the right of the Licensee to require the felling and removal of trees and necessary incidental works, including soil disturbance and vegetation clearance, on notice, by the Licensor to permit mining operations to proceed; (b) the Deed of Licence, incorporating the rights in (a), is an “existing privilege” within the meaning of clause 12 of Schedule 1 to the Crown Minerals Act 1991; and 2 Section 106 was subsequently amended by the Crown Minerals Amendment Act 2013 with substantially the same effect. 3 New Zealand Steel Ltd v Attorney-General [2013] NZHC 3524. 4 At [62] and [63]. 5 At [67]. (c) neither the Licensor nor the Licensee need any consent under the Resource Management Act 1991 to undertake such removal of trees or any necessary incidental works. [8] Since that decision a further issue has arisen with regard to forestry clearance, and potentially ironsand mining: whether an authority to modify under the Heritage New Zealand Pouhere Taonga Act 2014 (“HPTA 2014”) is required before the forest is cleared and/or ironsand mining commences. [9] The requirement to obtain an authority to modify (“the heritage protection regime”) is currently contained in s 42 of the HPTA 2014, and is required in respect of all archaeological sites, defined in s 6 (subject to s 42(3) of the HPTA 2014 as: (a) any place in New Zealand, including any building or structure (or part of a building or structure), that— (i) was associated with human activity that occurred before 1900 or is the site of the wreck of any vessel where the wreck occurred before 1900; and (ii) provides or may provide, through investigation by archaeological methods, evidence relating to the history of New Zealand; and (b) includes a site for which a declaration is made under section 43(1) [10] As the definition notes, Heritage New Zealand can declare any place to be an archaeological site, if on reasonable grounds, it believes it meets the definition. [11] This issue arose in the course of substantive proceedings brought by Te Ara Rangatu o te Iwi o Ngāti Te Ata Waiohua Inc on behalf of Ngāti Te Ata iwi (“Ngāti Te Ata”), with regard to the ownership of Maioro. While those substantive proceedings are not yet ready for hearing, New Zealand Steel, defendants in the substantive proceedings, have sought declarations by way of counterclaim once again that no further authority is required beyond the ISIA to fell and mine, and as a result no authority is modify under the HPTA 2014 is required. [12] The declarations sought by New Zealand Steel are opposed by the Crown, and by Heritage New Zealand Pouhere Taonga (“Heritage New Zealand”) as the counterclaim defendant. Ngāti Te Ata, somewhat surprisingly given its interest in Maioro, has taken no part in the determination of the counterclaim, neither filing submissions on the issue, nor appearing at the hearing before me. [13] As there is now no dispute following the first New Zealand Steel decision that the Licence is an existing privilege expressly preserved by the operation of the CMA, the sole issue in the present counterclaim is whether an authority to modify an archaeological site was required prior to the enactment of the RMA and CMA in 1991. That turns on whether an authority to modify archaeological sites has been required since the introduction of the heritage protection regime by the Historic Places Amendment Act 1975 (“the HPAA 1975”). This amended the Historic Places Act 1954 (“HPA 1954”) and took effect from 1 April 1976. There is no dispute that: (a) the requirement to obtain an authority to modify has remained in successive historic places legislation, through the Historic Places Act 1980 (“HPA 1980”), Historic Places Act 1993 (“HPA 1993”), and continues in the HPTA 2014; and (b) there is nothing in those subsequent Acts that would impose any greater obligation on New Zealand Steel if one was not required by the HPAA 1975. [14] In order to determine this broader issue two questions must be considered.
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