New Zealand Steel Limited v Attorney-General

New Zealand Steel Limited and Waikato North Head Mining Limited, the plaintiffs, brought an action against the Attorney-General and the Waikato Regional Council, the defendants, to determine whether the plaintiffs’ mining operations were exempt from requiring resource consents under the Resource Management Act 1991. The plaintiffs argued that their mining operations, including the removal of trees, were exempt from requiring resource consents because they were authorised by the Iron and Steel Industry Act 1959 and the Crown Minerals Act 1991. The defendants, on the other hand, argued that resource consents were required for the land surface disturbance associated with the removal of trees.

The court considered two issues: (a) what was the nature of the plaintiffs’ rights under the licence, prior to 1 October 1991; and (b) do the transitional provisions of the Crown Minerals Act 1991 mean that resource consents are not required for land surface disturbance associated with the removal of trees? The court held that the licence granted the plaintiffs the right to require the Crown to fell and remove trees to facilitate their mining operations. The court also held that the transitional provisions of the Crown Minerals Act 1991 meant that resource consents were not required for land surface disturbance associated with the removal of trees. The court held that the 1959 Act was special legislation that displaced parallel planning legislation, and that the transitional provisions preserved the pre-1991 position. The court held that the plaintiffs’ statutory rights, including the right to require the Crown to fell and remove trees, continued as if the Resource Management Act 1991 had not been enacted.

The court made the following declarations: (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 (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. Leave was reserved to apply to vary these declarations if necessary. There was no order for costs.