Kiwis Against Seabed Mining

KASM's Submission to the Draft Minerals Programme

21 December, 2005  Review of the Draft Minerals Programme (2006) – Crown Minerals Act (1991)

 

 

The following is the submission of William (Bill) McNatty, 38 Government Rd Raglan, researcher for the incorporated society Kiwis Against Sand Mining Incorporated (KASM) on the Draft Crown Minerals (Minerals and Coal) Minerals Programme 2006.

 

KASM requests the opportunity to speak to this submission

 

The objective of this submission is to highlight areas where the provisions within the proposed minerals programme together with the accompanying documentation

 

• demonstrate inconsistencies with other legislation
• demonstrate a disregard of the wishes of affected communities
• demonstrate confusions arising from misinformation
• demonstrate confusions in relation to permits issued within the boundaries of two or more regional authorities
• demonstrate an ignorance of Maori value processes and therefore a bias against Maori specifically contra to provisions within the Act
• demonstrate token service to internal provisions
• demonstrate the lack of public accountability or public audit of required provisions
• demonstrate or allow the potential to be over-ridden by international agreements
• demonstrate an unrealistic financial return for the mineral asset
• demonstrate the potential to create large monopolies controlling the New Zealand foreshore and seabed
• demonstrate a bias in the review process not allowed for within the Crown Minerals Act

 

 

1. Where the provisions demonstrate inconsistencies with other legislation

 

 

Historically the documentation supporting the rewrite of the Mining Act (1971) into the Crown Minerals Act (1991) has by convention shifted the consideration of environmental and social aspects of mining and mining practices into the Resource Management Act (RMA) 1991 and Amendments; and workplace safety consideration into the Occupational Safety & Health Act (OSH). The RMA has been substantially amended on 14 occasions, the latest as recent as 2005, with many of the 2005 amendments incorporating consistencies with the consultation and decision making processes within the Local Government Act (2002). Other 2005 RMA amendments address issues of central government leadership in policy directives through national environmental standards. A notable single amendment is the directive for consideration of prior investment, when considering the renewal of resource consent. It should be noted that with regards to the Minerals Programme, investment in a prospecting or exploration permit may fulfill the principle of consideration of prior investment under the RMA.

 

In seeking submissions to the review of the Minerals Programme, the Minister’s press statement observes that “ … It does not deal with environmental issues connected with mineral allocation, which are regulated under the Resource Management Act 1991” . (H Duynhoven 21 Dec 2005). That statement implies that no consideration of environmental issues should be included within the minerals programme.

 

KASM considers that this accompanying statement is in fact mistaken advice, based on a convention of convenience that is contra to a binding obligation on the Crown within the Crown Minerals Act.

 

On behalf of the Minister, duly authorized managers and policy analysts of the Crown Minerals division of the Ministry of Economic Development have also consistently argued that the Crown Minerals Act along with the following Regulations and Minerals Programme, requires no regard of, nor regard to environmental and social issues when considering any permit application. These same policy analysts, however, on behalf of the Crown make submissions in support of resource consent applications by mining companies and also make submissions to the district plans of local authorities.

 

• KASM considers that the consequence of policy documents, submissions and statements by the Minister on authority derived from the Crown Minerals Act engaging in functions of the Resource Management Act, the Continental Shelf Act, and the Foreshore and Seabed Act among others, must be adequately reflected as policy statements and schedules of requirement in the derived Minerals Programme.

 

• KASM argues that there is no authority in the Crown Minerals Act for the Minister to fail to consider other (including environmental) issues when allocating mineral resources. In fact KASM would argue that the legislative requirements giving authority for consideration are Sect. 9 and Sect. 12 of the Crown Minerals Act, with Sect. 3 binding the Crown in a duty to consider.

 

• KASM argues that Sect. 3 creates an obligation on the Crown to consider the implications and effects of other legislation and regulations as a function of the Minerals Programme decision making process

 

2. Where the provisions demonstrate disregard for the wishes of affected communities

 

KASM has collected over 8,500 signatures on a soon to be presented petition to the House of Representatives seeking a change to legislation, in order to prohibit unnecessary ironsand mining on the seabed within New Zealand’s coastal periphery. KASM considers as imperative that the proposed Minerals Programme incorporates within the regulations a specific function or mechanism that enables the Minister to address the wishes of the affected communities.

 

• KASM requests that a mechanism addressing the wishes of affected communities be given weight in the Minerals Programme.

 

• KASM requests that the area of known ironsand deposit on the seabed ranging from Taranaki to South Head Kaipara is specifically excluded from the Minerals Programme.

 

• KASM requests that areas of the seabed specifically identified by affected communities are excluded from the Minerals Programme.

 

 

3. Where the provisions demonstrate confusions arising from misinformation

 

The recent minerals permitting activity (2004 – 2005) regarding prospecting and exploration permits since the enactment of the Foreshore and Seabed Act (2004) has led to bold statements of hype by prospective miners, and allegations from the Minister, of misinformation being disseminated from various parties about proposed mining ventures. A community that asks central government officials for answers gets statements that in the opinion of the requesting community appear to avoid answering anything. For example, KASM considers that the matter of whether or not a prospecting or exploration proposal is a mining proposal, is playing with semantics. The following is an example of conflicting definitions from the Crown Minerals Act and an example (of no current mining proposal) often used by the Minister and senior managers.

 

“ ``Mining'' means to take, win, or extract, by whatever means, a mineral existing in its natural state in land, or a chemical substance from that mineral, for the purpose of obtaining the mineral or chemical substance; but does not include prospecting or exploration; and ``to mine'' has a corresponding meaning:

``Mining operations'' means operations in connection with mining, exploring, or prospecting for any Crown owned mineral including—…”

 

 

• KASM considers that the Crown Minerals Act and therefore the relevant Minerals Programme review must:

• be viewed in the context of all the associated legislative frameworks.
• be consistent with the context of all of the associated legislative frameworks.
• be seen to be transparent in the decision making processes included therein.
• be consistent with the principles and definitions included within all of the associated legislative frameworks

 

• KASM requests that statements demonstrating such principles of legislative consistency are included in an inclusive preamble to the Minerals Programme and that an appropriate schedule of audit, indicating compliance with such principles be an attached schedule to the Minerals Programme.

 

 

4. Where the provisions demonstrate confusions in relation to permits issued within the boundaries of two or more regional authorities.

 

• KASM considers that this issue requires addressing, first within the Minerals Programme as a clarifying directive, and secondly within the RMA as a functional process. This submission is in respect to a clarifying directive in the Minerals Programme. Issues previously have arisen because of the recent large areas being considered for seabed permit appraisal. As an example, the current prospecting permit, #39287 covers 1270 sq km and covers areas within 3 regional authorities. The regional authorities are Taranaki Regional Council, Environment Waikato, and Auckland Regional Council. While the permit holder had approached the Taranaki Regional Council, no approach had been made to either Environment Waikato nor Auckland Regional Council. KASM understands from the coastal marine consenting managers of the respective regional authorities that there would be merit in a mechanism within the Minerals Programme for any permit applicant to advise the regional authority/authorities of the permit proposal at the time of application.

 

• Consequently, KASM requests the inclusion of a mechanism within the Minerals Programme for any permit applicant to advise the regional authority/ authorities of the permit proposal at the time of application.

 

5. Where the provisions demonstrate an ignorance of Maori value processes and therefore a bias against Maori specifically contra to provisions within the Act and within provisions within Treaty of Waitangi principles

 

While there appears to be strong documentation in the draft minerals programme in support of Treaty of Waitangi principles on close examination there is little other than threatening words.

 

Nowhere other than requesting identification of sites of significance is there any attempt to meet with nor enter a Maori value base.

 

Nowhere is there reference to nor policy enacting the Treaty of Waitangi principles of partnership, protection and participation for Maori.

 

KASM cannot address issues related to individual iwi and hapu management within any specific rohe, other than to note that some few iwi authorities have had designated areas excluded from availability within the permitting regime. It is apparent that most iwi and/or hapu authorities have not had their areas of significance excluded, and are therefore disadvantaged in the Minerals Programme. Such disadvantage is expressly contra to Sect. 4 of the Crown Minerals Act and although some mechanism is provided for in the Minerals Programme, relative inequities are very apparent.

 

KASM requests that mechanisms to address Maori values and value processes are included in the policy documentation.

 

KASM requests that mechanisms that address Treaty of Waitangi principles of partnership, protection and participation for Maori are included in the policy documentation.

 

KASM supports any general mechanism satisfactory to those iwi and/or hapu that addresses iwi and/or hapu concerns.

 

KASM supports any iwi and/or hapu which seek that their area of significance is excluded from the Minerals Programme for the simple reason that they can demonstrate a claim of mana over the area.

 

 

6. & 7.

Where the provisions demonstrate token service to internal provisions

Where the provisions demonstrate the lack of public audit of required provisions

 

During the previous 12 months various members of KASM have had close association with two specific permit applications and their background information. These associations being the exploration permit proposal of Black Sand Exploration Ltd (declined) and the prospecting permit #39287 issued in favour of Iron Ore NZ Ltd. Two of these same members of KASM have also been in attendance at a meeting with Tainui Awhiro Hapu at Te Kopua, Raglan, when Rob Smillie, Manager of Crown Minerals, described the mechanisms for vetting and approving any prospecting, exploration or mining permit. At that hui Mr Smillie also addressed difficulties in complying with iwi and hapu consultation obligations under the Act, primarily based on an insufficient or poorly collated information database, but also based on inadequate resources.

 

The meeting was told that the vetting process included any previous mining experience, both nationally or offshore, and covered such areas as the permit applicants’ financial resources and their environmental record in any associated activities.

 

KASM’s own investigation showed in the case of permit number #39287 that of the two company directors at the time of issuing the permit, one director (James Hanna) was listed as an undisclosed bankrupt in NSW, Australia, and the other director (John Rutherford) as the Director of a separate NZ registered mining company, New Zealand Mineral Developments Ltd, had issued a public statement that he would choose to allow that company to fold rather than comply with conditions of a resource consent being negotiated with that mining company.

 

• KASM considers that for Crown Minerals managers to have not found such information in the first instance, and then not act in consideration of that information when that information was placed before them, are deliberate acts involving failure of duties of responsibility.

 

KASM notes that the outlined provisions for the vetting of any permit application in the proposed Minerals Programme appear much the same as in the existing regime.

 

• KASM considers that based on the specific experience of Prospecting Permit #39287, the level of vetting is indicative of either a lacking of the fiduciary responsibilities of the Crown Minerals managers, or a lack of resources within the Crown Minerals Dept. Either situation demonstrates a need for both an audit of the Minerals Programme decision making process, and public transparency of that decision making process.

 

• KASM requests that the Minerals Programme includes a directive that the Minerals Programme decision-making processes, and the criteria for the decisions so made, are scheduled in an attachment to any permit, and made available for public scrutiny.

 

• KASM requests that the Minerals Programme includes a provision that where any matters of substance are brought to the attention of the Minister subsequent to the issuing of any permit, these are dealt with

• as a matter of public record, (and)
• as though the permit had not been issued (and)
• as probable that any permit issued would be radically reviewed upon the provision of that substantive information.

 

 

8. Where the provisions demonstrate or allow the potential to be over-ridden by international agreements.

 

This particular issue is of concern in that there is the potential for any international agreement or convention that New Zealand may become party to, to override the sovereignty of parliament. To include such a provision within regulations is placing all the safeguards and provisions of the parliamentary process at risk.

 

• KASM requests that the proposed provision Key policy 2.1 (e) is rewritten to remove the identified risks

 

 

 

9. Where the provisions demonstrate an unrealistic financial return for the value base of the mineral asset.

 

KASM considers that 1% is an unrealistic financial return for the mineral asset.

 

KASM requests that the royalty be 3% (in line with the the royalty regimes of other nations) with 1% returned to the community from where the mineral was extracted.

 

10. Where the provisions allow the potential for the creation of monopolies controlling large area of the New Zealand foreshore and seabed

 

Recent permiting by Crown Minerals managers has allocated large areas in either a single or two adjacent permits. The example of Permit Nos 39288 & 39291 in favour of Seafields Resources covering a seabed area of approximately 10,200 square kilometres of the westcoast of the SouthIsland of New Zealand

 

In view of the process of how a prospecting permit can effectively rollover into a mining permit (Sec 32 Crown Minerals Act) KASM argues that there should be a practical limit on the initial prospecting permit areas in relation to the sea floor.

 

KASM requests that a mechanism limiting seabed or seafloor permits to a maximum of 100 square kilometres be included in the minerals programme

 

11.Where the support documentation on the review process demonstrates a bias in the review process not provided for within the Crown Minerals Act.

 

From Section 12 of the Crown Minerals Act

The purpose of a minerals programme is to establish policies, procedures, and provisions to be applied in respect of the management of any Crown owned mineral that is likely to be the subject of an application for a permit under this Part and, in particular, policies, procedures, and provisions which provide for—

(a)The efficient allocation of rights in respect of Crown owned minerals; and

(b)The obtaining by the Crown of a fair financial return from its minerals.

 

The support documentation invites submissions on the proposals outlined in the draft document. There is no mention nor invitation in the support documentation for submission on policies, procedures and provisions that the draft minerals programme might have omitted and that the public may wish included.

 

KASM considers that the noted omission in the invitation to submit on the proposed minerals programme reflects a bias in the review process that is contrary to established consultative processes.

 

KASM requests that the noted bias and unfairness in the support documentation to Minerals Programme review process be referred to the Ombudsman for referral on to a suitably appointed parliamentary select committee.

 

KASM requests that as a consequence of the noted bias in the review support documentation that the minerals programme review itself be attended to by a parliamentary select committee.