Royal Forest & Bird Protection Society of New Zealand Incorporated v Southland District Council
[2025] NZCA 324
•16 July 2025 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA175/2023 [2025] NZCA 324 |
| BETWEEN | ROYAL FOREST & BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED |
| AND | SOUTHLAND DISTRICT COUNCIL |
| Hearing: | 17 July 2024 |
Court: | Katz, Mallon and Ellis JJ |
Counsel: | D M Salmon KC and A W McDonald for Appellant |
Judgment: | 16 July 2025 at 11.00 am |
JUDGMENT OF THE COURT
AThe appeals are dismissed.
BThe appellant must pay each of the respondents costs for a standard appeal on a band A basis, with second counsel certified and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellis J)
Table of contents
Para no
The legal framework
Crown Minerals Act 1991
The Resource Management Act
The Supreme Court’s decisions in Genesis and Buller
The Climate Change Response (Zero Carbon) Amendment Act 2019
The Resource Management Amendment Act 2020
The Local Government Act 2002
The Council’s Significance and Engagement Policy
Local Government Leaders’ Climate Change Declaration
What happened in this case
Forest & Bird’s challenge to the decision
High Court decisions
Strike out
Judicial review
Costs
The judicial review appeal
Grounds
Analysis
The costs appeals
Costs on the strike-out application
Costs on the judicial review proceeding
Result
On 6 March 2023, Osborne J declined an application for judicial review brought by the Royal Forest & Bird Protection Society of New Zealand Inc (Forest & Bird) of resolutions made by the Southland District Council (the Council) at a full Council meeting on 14 April 2021.[1] The resolutions were:
(a)to enter into an access arrangement with Bathurst Resources Limited (BRL) regarding commercial forestry land owned by the Council (Ohai Commercial Forest), for coal exploration purposes; and
(b)to authorise its officers to negotiate an access arrangement regarding the land, for mining purposes.
[1]Royal Forest & Bird Protection Society of New Zealand Inc v Southland District Council [2023] NZHC 399 [judgment under appeal].
Forest & Bird now appeals the High Court’s decision. In essence, Forest & Bird say the High Court was wrong to find no error in the Council’s assessment of the significance of the decision to grant access, or in deciding that public engagement or consultation was not required before making it.
We record at the outset that the reality and predicted effects of climate change are not in dispute in these proceedings. Nor is the fact that, internationally, the burning of coal is a major source of carbon emissions and a significant contributor to global warming.
The legal framework
The authorisation of coal mining and related activities involve the interaction of a number of statutory regimes. So, it is useful to begin by setting out those legislative provisions, together with any relevant judicial commentary.
Crown Minerals Act 1991
The express purpose of the Crown Minerals Act 1991 (CMA) was (at the time) “to promote prospecting for, exploration for, and mining of Crown owned minerals for the benefit of New Zealand”.[2] Coal is a Crown owned mineral (when it is the property of the Crown).[3]
[2]Crown Minerals Act 1991, s 1A(1). This was modified on 31 August 2023 by s 4 of the Crown Minerals Amendment Act 2023, which replaced the word “promote” with “manage”.
[3]Section 2 of the Crown Minerals Act provides that a Crown owned mineral is any mineral that is the property of the Crown. A mineral is defined to include any fuel mineral, which itself is defined to include coal.
Following an application under s 23A of the CMA, or as the result of a public tender process under s 24, the responsible Minister may grant a prospecting permit, exploration permit or mining permit under s 25.
If the land to which such a permit relates is not owned by the permit holder, the CMA also prescribes how access rights may be obtained. Under s 54(2), a permit holder cannot utilise their permit except in accordance with an access arrangement agreed in writing between the permit holder and landowner or occupier (or as determined by an arbitrator).
Section 59 of the CMA provides that notice of a person’s intention to obtain an access arrangement must be given to the landowner. The notice is required to specify a number of things, including:
(a) the land affected; and
(b) the purpose for which the right of access is required; and
(c) the proposed programme of work including the type and duration of work to be carried out and the likely adverse effect on the land or the owner or occupier of the land; and
(d) the compensation and safeguards against any likely adverse effects proposed; and
(e) the type of permit held or applied for by the person giving the notice; and
(f) if the notice relates to access to Crown land or land in the common marine and coastal area, the direct net economic and other benefits of the proposed activity in relation to which the access arrangement is sought.
Under s 60(2), the landowner may have regard to “such matters as he or she considers relevant” when considering whether to agree to entering into an access arrangement.
To some extent, a landowner has the ability to grant or deny access. But if a landowner fails or refuses to enter into an access arrangement within 60 working days of notice being given, the permit holder can then apply for a declaration that an arbitrator may determine an access arrangement.[4] Notice of such an application is given to the landowner by the appropriate Minister if the Minister considers there are “sufficient public interest grounds to support the application”.[5] If the landowner does not then enter into an access arrangement or consent to the application being resolved by an arbitrator within a period of three months, the Minister can refer the matter to the Governor-General, who may declare that an arbitrator may proceed to determine an access arrangement between the permit holder and the landowner.[6] If the matter is referred to arbitration, under s 70(1) the arbitrator is required to grant access on reasonable conditions.
The Resource Management Act
[4]Crown Minerals Act, s 66(1).
[5]Section 66(3).
[6]Section 66(5). As we understand it, this power has never been invoked.
Activities that may have environmental effects, such as coal mining, require permits and consents from the relevant local authority under the Resource Management Act 1991 (RMA). If consent applications are required to be publicly notified, members of the public may make submissions on the proposed activity.[7]
[7]Resource Management Act 1991, s 96(1).
Part 2 of the of the RMA contains the “Purpose and principles” of the Act. This includes s 7, which provides a number of considerations that all those exercising functions and powers under the RMA must “have particular regard to”, including, under para (i), “the effects of climate change”.
There are some further provisions in the RMA that assumed particular importance during the hearing of Forest & Bird’s appeal, despite not apparently being relied on in the High Court or referred to in the judgment under appeal (or, indeed, in counsel’s written submissions).[8]
[8]It was clarified during the hearing before us, however, that submissions on the points had been made in the High Court and, in our view, they are encompassed by Forest & Bird’s points on appeal.
First, there are ss 70A and 104E, which were introduced by the Resource Management (Energy and Climate Change) Amendment Act 2004. Section 70A relevantly provided:
70A Application to climate change of rules relating to discharge of greenhouse gases
Despite section 68(3), when making a rule to control the discharge into air of greenhouse gases under its functions under section 30(1)(d)(iv) or (f), a regional council must not have regard to the effects of such a discharge on climate change, except to the extent that the use and development of renewable energy enables a reduction in the discharge into air of greenhouse gases, either—
(a) in absolute terms; or
(b) relative to the use and development of non-renewable energy.
And s 104E provided:
104E Applications relating to discharge of greenhouse gases
When considering an application for a discharge permit … to do something that would otherwise contravene section 15 … relating to the discharge into air of greenhouse gases, a consent authority must not have regard to the effects of such a discharge on climate change, except to the extent that the use and development of renewable energy enables a reduction in the discharge into air of greenhouse gases, either—
(a) in absolute terms; or
(b) relative to the use and development of non-renewable energy.
So under the 2004 amendments to the RMA, local authorities are prohibited from considering discharges to air of greenhouse gas emissions when exercising their resource consenting and rule-making functions under the RMA, except to the extent that the use and development of renewable energy enables a reduction in the discharge into air of greenhouse gases.
The Supreme Court’s decisions in Genesis and Buller
The interpretation of ss 70A and 104E, in particular, was discussed extensively by the Supreme Court in Genesis Power Ltd v Greenpeace New Zealand Inc (Genesis).[9] The Court said:
[50] Section 70A thus addresses the making of rules by regional councils to control the discharge of greenhouse gases, and s 104E the consideration of applications to permit their discharge. The two sections prevent regard being had to the effects of such discharges on climate change through the words “must not have regard to the effects of such a discharge on climate change”. Both sections then go on to qualify that prohibition, again in identical terms, by adding the words “except to the extent that the use and development of renewable energy enables a reduction in the discharge into air of greenhouse gases”. The two sections then conclude by making clear that the reduction may be either absolute (by using an energy source such as hydro, which does not result in the discharge of any greenhouse gases) or relative (as, for example, by using geothermal sources, which result in the discharge of less, but some, greenhouse gases).
[9]Genesis Power Ltd v Greenpeace New Zealand Inc [2008] NZSC 112, [2009] 1 NZLR 730.
The Court confirmed that:[10]
[55] Section 3(b) of the Amendment Act requires local authorities, as one of the purposes of the legislation, “to plan for the effects of climate change”, but “not to consider the effects on climate change of discharges into air of greenhouse gases”. To like effect, the legislation amended s 7 of the principal Act to require all those exercising powers and functions under it to have “particular regard” to the “benefits to be derived from the use and development of renewable energy”. The underlying policy of the Amendment Act was to require the negative effects of greenhouse gases causing climate change to be addressed not on a local but on a national basis while enabling the positive effects of the use of renewable energy to be assessed locally or regionally.
[10]Emphasis added.
And later, the Court reiterated:[11]
Local authorities are generally prohibited from having regard to the effects on climate change of the discharge of greenhouse gases, but may do so when making a rule which controls, or considering an application for consent to, an activity involving the use and development of renewable energy.
[11]At [62].
Five years later, in West Coast ENT Inc v Buller Coal Ltd, the Supreme Court considered an appeal relating to applications for resource consents to permit the mining of coal made by Buller Coal Ltd (BCL) and Solid Energy New Zealand Ltd (Solid Energy).[12] All of the coal proposed to be extracted was to be exported and burnt overseas. The applications were opposed by West Coast ENT Inc (West Coast ENT), and Forest & Bird. They argued that climate change effects associated with the burning of the coal was required to be considered under s 104(1)(a) of the RMA, which provided:
(1) When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2, have regard to–
(a) any actual and potential effects on the environment of allowing the activity; …
[12]West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87, [2014] 1 NZLR 32.
The Court by a 3:1 majority held that consideration by a local authority of the “actual or potential effects on the environment” of a particular activity (such as coal mining) does not involve or require consideration of “the impact on climate change of the discharge into air of greenhouse gases that result indirectly from that activity”.[13] One of the main drivers for the majority’s interpretation was the surrounding statutory context, which at that time included the 2004 amendments and, in particular, s 104E. The majority found that it was not open to territorial authorities and regional councils to regulate activities by reference to the effect on climate change from discharges of greenhouse gases which resulted indirectly from activities under the RMA.[14]
[13]At [172].
[14]At [175].
The majority in Buller Coal also commented more broadly on the indirectness point. After recording that the s 104(1)(a) “effects on the environment” — upon which the appellants (West Coast ENT and Forest & Bird) wished to rely — were the direct consequences of burning coal (rather than mining it), they said:[15]
… So there would always have been scope for argument that the climate change effects relied on by the appellant were too remote from the activities for which consents were sought to fall within the scope of s 104(1)(a). Indeed what was effectively this argument succeeded in one case in the Environment Court.
[15]At [117] (footnote omitted).
Then, the Court went on:[16]
[118] The indirectness argument can be taken a little further. For reasons already given, the climate change effects of burning coal are irrelevant to the applications to the extent to which they seek permission to mine coal. The issue only arises because aspects of the projects which are ancillary to the proposed mining are discretionary, controlled or non-complying under the relevant plans. To put this in more specific terms – and to give an example – BCL requires consent to put in roading associated with its mining proposal. West Coast ENT’s argument is that such consent should be refused because of, inter alia, the climate change effects of the burning of the coal, the mining and export of which will be facilitated by the roading in question. It might be thought a little odd if climate change consequences which are irrelevant to the application for consent to mine the coal are relevant to an ancillary element of the mining proposal. As well, the eventual burning of the coal overseas is not closely associated with the construction of roading on the West Coast. And finally on this point, allowing climate change arguments to be advanced in relation to roading might be thought to be antithetical to the concept of a restricted discretionary activity and the rules in the District Plan.
[119] We accept that effects on the environment of activities which are consequential on allowing the activity for which consent is sought have sometimes been taken into account by consent authorities. This is particularly so in respect of consequential activities which are not directly the subject of control under the RMA. But questions of fact and degree are likely to arise as is apparent from the judgment of the Environment Court in Beadle v Minister of Corrections. …
[16]Footnotes omitted.
And then:[17]
[17]Footnotes omitted.
[121] The considerations just discussed involve the particular situation of the mining of coal and its subsequent burning, in this case, overseas. The tangibility issue which we are now about to discuss was (and is) applicable to any climate argument, including those referable to activities which result directly in the discharge of climate change gases.
[122] Prior to the 2004 Amendment Act, there would have been considerable scope for argument whether the effect on climate change of burning coal which is to be mined by BCL and Solid Energy would be sufficiently tangible to engage s 104(1)(a). Relevant to this are two considerations:
(a) BCL and Solid Energy wish to produce coal to meet an existing market. Steel manufacturers who are unable to acquire coal from New Zealand will presumably obtain coal from other suppliers. So there is scope for doubt at least as to whether restricting New Zealand’s coal output would make any appreciable difference to the worldwide use of coal. To relate this consideration back to the text of the statute, it may be that since steel manufacturers will, whatever happens in New Zealand, burn whatever coal is required for their purposes, the emissions of CO2 which result from their operations is not properly to be seen as a consequence or effect of the mining of coal in New Zealand; and
(b) in any event, it would be difficult, and probably impossible, to show that the burning of coal would have any perceptible effect on climate change.
[123] The arguments referred to in [122] have both received some acceptance in Australia and the argument referred to in [122(b)] was addressed in passing in Genesis Power Ltd v Greenpeace New Zealand Inc by the Court of Appeal in this way:
… given New Zealand’s comparatively low contribution to worldwide GHG emissions and the infinitesimal contribution which any particular project could make, there could be no demonstrable linkage between GHG emissions associated with any particular project and climate change generally.
On the other hand, in overseas jurisdictions reasoning along the same lines has not always prevailed. As will become apparent, the [122(b)] argument is largely premised on the view that, under s 104(1)(a) of the RMA, “effects” are confined to those which would not occur but for the activity in question. We do not wish to express a conclusion as to whether this view is correct. Rather, what we are interested in – for reasons which will become apparent shortly – is (a) how such an issue would likely to have been resolved in New Zealand prior to 2004 and (b) the likely associated contemporary perceptions.
And in conclusion:
[127] The arguments against the relevance of climate change effects were strengthened by the enactment of the Climate Change Response Act. New Zealand had committed to reducing net emissions of climate change gases to 1990 levels and the mechanisms by which this was to be achieved were provided for in that Act. This commitment and the statutory and national mechanisms provided for in the 2002 Act left little – and arguably no – scope for useful involvement by local authorities.
And later:[18]
… For the reasons which we have given, we are satisfied that it is not open to territorial authorities and regional councils to regulate activities by reference to the effect on climate change of discharges of greenhouse gases which result indirectly from such activities. In the present case, there is the added factor that the discharges will occur overseas. As Whata J explained, this poses further practical and legal problems, for instance, in assessing the regulatory context in which the discharges will occur and the extent to which they will be balanced by mitigation or compensation measures. While the principle that statutes do not have extraterritorial effect is not strictly engaged, given that the effects of climate change are global, the issues with assessing effects offshore are an added reason why we reject the interpretation contended for by West Coast ENT.
The Climate Change Response (Zero Carbon) Amendment Act 2019
[18]At [175] (footnote omitted).
As will be evident from the decisions just referred to, the Climate Change Response Act 2002 (CCRA) was, at the time of those decisions, the principal legislative means by which New Zealand met its international obligations under the United Nations Framework Convention on Climate Change, the Kyoto Protocol and the Paris Agreement. Among other things, the CCRA provides for a greenhouse gas (GHG) emissions trading scheme and GHG levies for specified emissions.[19]
[19]Climate Change Response Act 2002, pts 4 and 7.
The CCRA was, however, significantly amended in 2019 by the Climate Change Response (Zero Carbon) Amendment Act 2019 (Zero Carbon Act). The amendment included introduction of a national net zero GHG emissions target by 2050 (excluding biogenic methane).[20]
[20]Climate Change Response (Zero Carbon) Amendment Act 2019, s 8, inserting s 5Q of the Climate Change Response Act.
The Zero Carbon Act also established the Climate Change Commission (CCC) and introduced requirements for the relevant Minister to prepare “emissions budgets” and “emissions reduction plans” to achieve the 2050 target.[21] The CCC has provided recommendations to the Executive in relation to the first three emissions budgets, which respectively cover the periods 2022–2025, 2026–2030 and 2031–2035. The Minister has set emissions budgets in response to those recommendations and prepared an emissions reduction plan. At the time relevant to these proceedings (April 2021) the CCC had issued draft advice for consultation, which included proposed emissions budgets. The draft advice referred to “ending the use of coal”. Although the main focus was, necessarily, on ending the use of coal in New Zealand, the operation of coal mines was noted as also a contributor to emissions.
[21]Climate Change Response (Zero Carbon) Amendment Act, s 8, inserting ss 5A, 5X and 5ZJ of the Climate Change Response Act.
As well, s 5ZN of the CCRA provides:
5ZN 2050 target and emissions budget are permissive considerations
If they think fit, a person or body may, in exercising or performing a public function, power, or duty conferred on that person or body by or under law, take into account—
(a) the 2050 target; or
(b) an emissions budget; or
(c) an emissions reduction plan.
Although the phrase “a person or body” includes a local authority such as the Council, it has been said to be “unarguable” that the matters listed in s 5ZN are permissive, not mandatory, considerations when exercising decision-making powers.[22]
The Resource Management Amendment Act 2020
[22]Students for Climate Solutions Inc v Minister of Energy and Resources [2024] NZCA 152, [2024] 2 NZLR 822 at [88].
Sections 70A and 104E of the RMA were among the provisions repealed by the Resource Management Amendment Act 2020, as from 30 November 2022 (after the Council had made the impugned decision in this case). The repeal responded to the Supreme Court’s decision in Buller Coal and was intended to align the RMA with the Zero Carbon Act.
The Regulatory Impact Assessment noted:[23]
21.The net effect of the Supreme Court decisions and the resulting impact on the perceptions and practice of councils and resource management practitioners is arguably more restrictive than Parliament’s original intent when passing the 2004 amendments. Now 15 years later it is increasingly misaligned with the more urgent and far-reaching aims of climate change policy to achieve a low emissions climate-resilient economy.
22.The passing of the ZCA has illustrated the growing inconsistency between the two acts. The ZCA expressly permits decision-makers acting under other legislation to take into account the new statutory emissions targets, emissions budgets and reduction plans mandated under the ZCA. However, under the RMA local authorities are effectively prohibited from taking these into account.
23.The removal in 2004 of council’s ability to consider greenhouse gas emissions from RMA activities reflected the climate change policy context of the time, in which the goal was for New Zealand to respond to climate change matters at the least cost to the economy, by means of a pre-eminent carbon pricing scheme. Non-price measures, including RMA regulation, were assumed to be duplicative and unnecessary unless a strong case could be made for them.
24.In contrast, now the pre-eminent policy goal is to achieve the necessary transition to net zero carbon emissions by the second half of this century. This must be done while ensuring the economic implications of this are manageable. That these impacts are well-managed is still a critically important focus for climate policy, however the primary objective has now shifted to achieving the low emissions outcome.
[23]Ministry for the Environment | Manatū Mō Te Taiao Impact Summary: Linking the Zero Carbon Act 2019 with the Resource Management Act 1991 (1 June 2020) at 4–5 (footnotes omitted).
Although no amendment was made to s 104, there was a clear legislative intent to align the RMA with the Zero Carbon Act and to permit local authorities through the RMA to consider such issues:[24]
35.As New Zealand’s key environmental statute, the RMA is potentially a powerful lever to support the transition to a low emissions economy, particularly in its ability to facilitate local authorities in contributing to the national effort where it is most appropriate. The tools, processes and practice under the RMA are far-reaching in their ability to influence outcomes across the industrial, transport, land-use and energy sectors. Both the Productivity Commission and the Interim Climate Change Committee have cited the need for the RMA to support core climate change policies, and for it to better enable emissions reductions.
…
53.This option will create a formal link between the RMA and the CCRA, and align the policy frameworks underpinning both Acts. Regional councils and territorial authorities will be required to consider the emissions reduction plans and national adaptation plans under the CCRA when making their regional plans, policy statements and district plans under the RMA (sections 61, 66 and 74). This responds to those submissions on both the RM Bill and the ZCB, which sought to link the CCRA and the RMA.
54.To create clarity for local authorities to make any decisions on the basis of climate change mitigation, the statutory bar (under sections 70A and 104E) will need to be repealed. Given the implications of removing these sections on councils, the Government will need to develop a clear and targeted NES, or other national direction, to ensure the regional contribution to climate change mitigation is focused where it is most valuable and appropriate.
55.Under this option repealing sections 70A, 70B, 104E and 104F would not come into force until December 2021 to clearly align with the publication of the first emissions reduction plan under the CCRA.
The Local Government Act 2002
[24]At 6–7 and 11 (footnote omitted).
The work of the Council is principally governed by the Local Government Act 2002 (LGA).
The purpose of local government is said by s 10 of the LGA to be:
(a) to enable democratic local decision-making and action by, and on behalf of, communities; and
(b) to promote the social, economic, environmental, and cultural well‑being of communities in the present and for the future.
And s 11 states that the role of a local authority is to:
(a) give effect, in relation to its district or region, to the purpose of local government stated in section 10; and
(b) perform the duties, and exercise the rights, conferred on it by or under this Act and any other enactment.
The general tenor of the LGA is to empower local authorities to give effect to their purpose, subject to democratic control through their elected members.[25] This broadly empowering approach is balanced by the decision-making and accountability regime in pt 6 of the Act.[26]
[25]Mt Wellington Race Park Club Inc v Auckland Council [2020] NZHC 1245, [2020] NZRMA 469 at [89].
[26]This empowering approach can be contrasted with the previous local government legislation (the Local Government Act 1974 and the Municipal Corporations Act 1954), which were highly prescriptive and contained detailed powers and obligations for many local authority functions. The changes made by the LGA were described in the explanatory note to the Local Government Bill 2001 as a “shift from a detailed and prescriptive style of statute … to a more broadly empowering legislative framework that focuses councils on meeting the needs of their communities”: Local Government Bill 2001 (191-1) (explanatory note) at 1.
Section 12(2) of the LGA confers on local authorities a general power of competence, subject to the LGA itself and any other enactment or rule of law.[27] Section 14 sets out various principles governing the performance by local authorities of their functions. Relevantly, the section states:
[27]Local Government Act 2002, section 12(3).
14 Principles relating to local authorities
(1) In performing its role, a local authority must act in accordance with the following principles:
…
(b) a local authority should make itself aware of, and should have regard to, the views of all of its communities; and
(c) when making a decision, a local authority should take account of—
(i) the diversity of the community, and the community’s interests, within its district or region; and
(ii) the interests of future as well as current communities; and
(iii) the likely impact of any decision on each aspect of well-being referred to in section 10:
…
(h) in taking a sustainable development approach, a local authority should take into account—
(i) the social, economic, and cultural well-being of people and communities; and
(ii) the need to maintain and enhance the quality of the environment; and
(iii) the reasonably foreseeable needs of future generations.
Part 6 of the LGA sets out specific provisions that govern local authority decision-making. On the whole, pt 6 does not prescribe or limit substantive powers, but is concerned with matters of process. Section 76 relevantly provides:
76 Decision-making
(1) Every decision made by a local authority must be made in accordance with such of the provisions of sections 77, 78, 80, 81, and 82 as are applicable.
(2) Subsection (1) is subject, in relation to compliance with sections 77 and 78, to the judgments made by the local authority under section 79.
(3) A local authority—
(a) must ensure that, subject to subsection (2), its decision‑making processes promote compliance with subsection (1); and
(b) in the case of a significant decision, must ensure, before the decision is made, that subsection (1) has been appropriately observed.
…
Section 76(3) therefore makes it clear that, before making a “significant decision”, a local authority must ensure that s 76(1) has been appropriately observed.[28] As well as putting in place decision-making processes that promote compliance, the local authority must also consider whether compliance has in fact been achieved, before making the relevant significant decision.
[28]Section 76(3) relates solely to matters of process and is not intended to qualify or limit the substantive and mandatory obligation in s 76(1) that every decision made by a local authority must be made in accordance with such of ss 77, 78, 80, 81, and 82 as are applicable.
Under s 77, the local authority must, in the course of a decision-making process:
(a) seek to identify all reasonably practicable options for the achievement of the objective of a decision; and
(b) assess the options in terms of their advantages and disadvantages; and
(c) if any of the options identified under paragraph (a) involves a significant decision in relation to land or a body of water, take into account the relationship of Māori and their culture and traditions with their ancestral land, water, sites, waahi tapu, valued flora and fauna, and other taonga.
Although under s 78, a local authority must consider the “views and preferences of persons likely to be affected by, or to have an interest in, the matter” when making decisions, the section also:
(a)expressly states that this does not, by and of itself, require consultation;[29] and
(b)is itself subject to the local authority’s s 79 discretion as to how to achieve compliance with ss 77 and 78.[30]
[29]Section 78(3).
[30]Section 78(4).
It is important to note that, while (by dint of s 76(1)) compliance with ss 77 and 78 is mandatory, both those sections are subject to s 79. The local authority therefore has a broad discretion as to how to best achieve compliance, relative to the significance of the decision in issue. More particularly, s 79 makes it clear that the local authority’s assessment about how to achieve compliance with ss 77 and 78 is to be in proportion to the “significance of the matters affected by the decision as determined in accordance with the policy under [s 76AA]”, in addition to:
(a)the principles set out in s 14;
(b)the local authority’s resources; and
(c)the extent to which the nature of a decision, or the circumstances in which a decision is taken, allows the local authority scope and opportunity to consider a range of options or the views and preferences of other persons.
The nature and circumstances of a decision referred to in (c) are stated (in s 79(3)) to include the extent to which the requirements for such decision-making are prescribed in or under any other enactment.
In turn, s 76AA (inserted in 2014) requires local authorities to adopt a significance and engagement policy (SEP) setting out:
(a) that local authority’s general approach to determining the significance of proposals and decisions in relation to issues, assets, and other matters; and
(b) any criteria or procedures that are to be used by the local authority in assessing the extent to which issues, proposals, assets, decisions, or activities are significant or may have significant consequences; and
(c) how the local authority will respond to community preferences about engagement on decisions relating to specific issues, assets, or other matters, including the form of consultation that may be desirable; and
(d) how the local authority will engage with communities on other matters.
Section 82 requires that any consultation undertaken by a local authority in relation to any decision or other matter must be undertaken (subject to subss (3)–(5)) in accordance with a number of stipulated principles.
The Council’s Significance and Engagement Policy
The Council first adopted a SEP under s 76AA of the LGA on 29 October 2014, following which it was reviewed on a triennial basis. The version that is presently relevant is dated 10 March 2021 (just a few days before the impugned decision was made), although it is not materially different from its predecessor. The SEP provides that the Council will follow a three-step process to inform decision-making:
Step 1 - determine significance - Council will use particular factors to decide if a matter is of higher or lower significance. This part of the policy also gives guidance on what to do if a matter is of high significance.
Step 2 - identify community views - Council will determine what it knows about community views and identify if there is a need for more information.
Step 3 - deciding on an approach to community engagement - the level of significance and what Council wants to know about community views will guide Council on an appropriate level of engagement, and how and when to engage. This part of the policy provides clarity on how and when communities can expect to be engaged in different issues. It also identifies how Council will respond to community preferences about engagement.
The SEP also sets out five factors of equal weighting the Council must take into account when assessing the significance of a particular decision. The three presently relevant factors are:
(a)the likely impact or consequences of the issue, decision or proposal on the current and future social, economic, environmental or cultural wellbeing of the district or region;
(b)the effect on people who are likely to be particularly affected by or interested in the issue, decision or proposal; and
(c)the financial and non-financial costs and implications of the issue, decision or proposal on the Council’s capability and capacity.
The SEP also states:
In general, where a matter is not considered significant under this policy, Council is unlikely to seek additional information on community views. However, in some situations where Council staff deem community involvement or notification is appropriate, informal feedback or notification processes may be followed.
And lastly, the SEP permits the Council to “take into account knowledge it has previously gained about the community and its views on an issue to assess whether the matter has a high level of significance”.
Local Government Leaders’ Climate Change Declaration
In 2017, a group of 40 local authority mayors and chairs joined in signing the Local Government Leaders’ Climate Change Declaration (LGLCC Declaration).
The LGLCC Declaration contains an acknowledgment of the urgent need to address climate change for the benefit of current and future generations. It also contains “Council Commitments” to developing and implementing ambitious action plans that reduce GHG emissions and sets out important “guiding principles” for responding to climate change, including precaution; stewardship and kaitiakitanga; equity and justice; understanding; and co-operation and resilience.
Although one of the signatories of the LGLCC Declaration was the then-Mayor of the Southland District, the Council has not resolved to adopt it and even if it had, the LGLCC Declaration could not operate in a way that is inconsistent with the relevant statutory regimes. So although Forest & Bird placed some reliance on it, we do not propose to consider it further in this judgment, for those reasons.
What happened in this case
BRL wanted access to Council-owned forestry land so it could explore the viability of extending the Takitimu coal mine near Ohai in Southland. Any such extension would be operated by BRL’s wholly-owned subsidiary, New Brighton Collieries Ltd (NBC). As we understand it, any coal that might ultimately be extracted from an extended mine would be for domestic use including, in particular, by Fonterra.
After some preliminary discussions with the Council, by letter on 25 January 2021, BRL:
(a)gave notice under s 59 of the CMA that NBC intended to obtain an access arrangement for the purpose of exploration over the Council’s land; and
(b)asked the Council to make an “in principle” decision in relation to an access arrangement for mining of the Council’s land.
In the course of considering the proposal, Council managers and policy officers provided input and sought independent external advice. The officers prepared a report for consideration by the Council’s Services and Assets Committee (SAC). Because this report was materially identical to the report subsequently provided to the Council for consideration (discussed in more detail below), it suffices to note at this point that the three options proposed in this report were that the SAC:
(e) Agrees to recommend to Council that officers proceed with one of the options below:
i)Option 1 – Enter into access agreement for exploration and agree, subject to negotiation, to an access agreement for mine development; or
ii)Option 2 – Enter into access agreement for exploration but do not agree at this stage to further mine development, instead allowing for consideration of community views; or
iii)Option 3 – Do not enter into access agreement for exploration nor an access agreement for mine development.
The SAC met, partly in camera, on 23 March 2021. It determined that the first of these three options was preferred.
The matter then came before the Council on 14 April 2021. As just noted, the Council was given a report largely identical to the report provided to the SAC, but concluding with a single final recommendation, namely the SAC’s preferred option (the Council Report).[31] The Council Report nonetheless summarised the advantages and disadvantages of all three alternatives, in tabular form, as follows:
[31]In the High Court, an affidavit was filed by the Council’s Group Manager, detailing the discussions that took place at both the SAC meeting and the Council meeting. His evidence about them is summarised in the judgment under appeal, above n 1, at [16]. But Forest & Bird object to the admissibility of this evidence on the grounds that the record of the decision should speak for itself.
Option 1 – Enter into access agreement for exploration and agree, subject to negotiation, to mine development should this project proceed
| Advantages | Disadvantages |
| · complies with the 60-day timeframe after which BRL are entitled to seek arbitration · supports significant district employer and related communities · can determine terms of agreement. | · does not provide time for comprehensive community engagement and consideration of community views · exposure to reputational risk if decision is at odds with community stance. Although, this risk may be present with any option. |
Option 2 – Enter into access agreement for exploration but do not agree at this stage to further mine development, instead allowing for consideration of community views.
| Advantages | Disadvantages |
| · allows for exploratory stage of development proposal to proceed which is relatively lower risk · allows time to engage with the community and consider their views in relation to potential mine development · complies with 60-day timeframe after which BRL are entitled to seek arbitration | · reputational risk of being in a position where decision for exploration has been made but community does not support mining · unlikely to gain a clear or unanimous position from the community on this issue · exposed to some reputational risk associated with agreeing to access for exploration but then withholding agreement for mining. |
Option 3 – Do not enter into access agreement for exploration or mining
| Advantages | Disadvantages |
| · Council avoids making a decision that may be in opposition to local community views and/ or conclusions from recent Climate Change Commission reporting. | · Crown [Minerals] Act 1991 outlines a process where BRL may advance access agreement, if Council and BRL are unable to reach agreement, this involves measures including appointment of an arbitrator and escalation to the minister which may result in loss of control over the issue at a local government level. |
Under the heading “Issues”, the Council Report began by noting:
17 While an access agreement for exploration has been sought, BRL is ultimately seeking an access arrangement for mining. Consideration of access for exploration should be made in the context of likely mine development and access arrangements sought in that respect.
After referring to the potential financial consequences of granting or denying access (and having BRL escalate the request to the Minister under the CMA), the Council Report expressed the view that “[t]he decision between entering into an access agreement or deferring to BRL to rely on the mechanisms within the [A]ct is generally financially neutral to the Council”. Then it went on to say:
20… Due to this, the decision before Council is fundamentally a political one. Council has to decide on whether to agree to allow access at this stage or allow for the possibility of BRL requesting access through a central government mechanism. This matter regarding access for coal is probably more significant than any possible financial net gain associated with payment for access and this is where the focus of the decision is expected.
In terms of which approach was preferred, the Council Report advised:
21 There are valid reasons for either approach. For example, Council may consider that economic benefits to the community from coal mining, take precedence and decide to grant access at this stage. Alternatively, Council may consider that recent Climate Change Commission draft recommendations are a higher priority and let this decision be escalated to a central government level for resolution.
22 If the decision is escalated to central government, the relevant minister is required to consider the matter “on the grounds of the public interest”. It is expected that matters such as economic impact to the community and significant industry sectors such as dairy processing, from coal mining development would be weighed against climate change considerations, such as recommendations from recent Climate Change Commission draft reporting.
Under the heading “Community Views”, the Council Report recorded:[32]
33 It is important to note that NBCL has a right to exploration activities through exploration permit EP 40625 and Council has a corresponding right to full compensation. Further, NBCL has applied for a mining permit although no grant has yet been made by the Crown.
34 Community views have not been sought with respect to this issue and no specific engagement activities have taken place. Staff anticipate the community holding a wide range of views on this topic so there is a high risk that any engagement exercise would be inconclusive. Further, if the decision is escalated to the Ministry level, there is a risk that the weight of local views would be diminished.
35 Community views would be considered through the resource consent process associated with mine development.
36 At this point staff are seeking clarification from Council about whether or not to enter into an access agreement for exploration and whether or not there is support to enter into a subsequent access agreement in relation to mining.
37 Should support for a mining access agreement be indeterminate at the time of this meeting then Council may consider engaging the community through a combination of tools such as community meetings, social media, drop-in sessions, surveys and discussion – noting that a resource consent process would also be required for mine development.
38 Such community engagement would need to be undertaken in a manner not to breach confidentiality obligations to BRL and commercially sensitive matters generally.
[32]Emphasis added.
Under the heading “Assessment of Significance”, the Council Report said:
48This issue could be considered to have some impact for “the current and future social, economic, environmental or cultural wellbeing of the district or region” as per Council’s current Significant and Engagement Policy. However, the matter specifically relates to a particular block of Council’s commercial forest estate, rather than a broader scale policy at a district, community or even forest estate as a whole.
49 Although there may possibly be a high degree of interest in this issue from the community and affected stakeholders, not all interested parties will necessarily be directly impacted or face consequences. For this reason, the matter may not be considered significant, although [it] is possibly approaching a significance threshold.
Attached to the Council Report was a “white paper”, entitled “Takitimu Mine and New Brighton Coal Deposit”, dated January 2021. That document set out the key terms of an access agreement for mining and recorded that “[t]he final details” will be as agreed between the parties once the Council agreed in principle to provide access for mining.
The Council resolved to adopt the recommendation made by the SAC with an additional condition: that NBC was to apply for a publicly notified resource consent for any subsequent mine development.[33] In formal terms, the final resolution was that the Council:
a) Receives the report titled “Access to Commercial Forest at Ohai for Coal Exploration and Mining” dated 7 April 2021.
b) Determines that this matter or decision be recognised “as not” significant in terms of Section 76 of the Local Government Act 2002.
c) Determines that it has complied with the decision-making provisions of the Local Government Act 2002 to the extent necessary in relation to this decision; and in accordance with Section 79 of the [Act] determines that it does not require further information, further assessment of options or further analysis of costs and benefits or advantages and disadvantages prior to making a decision on this matter.
d) Agrees to consider the three options available for coal exploration access at Ohai commercial forest and note that whichever option is chosen will be of neutral cost impact to Council.
e) Agrees that officers proceed with entering into an access agreement for exploration and agree, subject to negotiation, to an access agreement for mine development and with the condition that the applicant applies for a publicly notified resource consent.
f) Agrees that the group manager of Services and Assets, chief executive and chair of the Services and Assets Committee are delegated to execute such an agreement.
[33]It is not entirely clear to us which of these “mine development” activities would require resource consent.
The Council and NBA then executed a contract entitled “Exploration Access Arrangement”, dated 5 May 2021 (the Access Agreement). The access rights for exploration purposes — recorded in the Access Agreement — were registered over the titles to the relevant land, as contemplated by s 83 of the CMA. The Access Agreement had a limited term, commencing on the execution date and expiring on 30 June 2022. The Access Agreement contained an express acknowledgement that the Council was entering into it in its capacity as landowner and (effectively) without prejudice to any actions it might later take in its regulatory capacity as a consenting authority under the RMA, or in the exercise of any of its powers under its bylaws.
NBC concluded its exploration activities in August 2021, less than a month after Forest & Bird filed its claim for judicial review in the High Court. The Access Agreement expired in June 2022. At the time of the hearing before us, no further access to Ohai Commercial Forest had been sought. Results of the exploration, and any economic case for progressing to the mining stage, were still being assessed by NBC and would, in any event, require a mining permit under the CMA, access to the land for mining purposes and resource consent(s) for mining-related activities.
Forest & Bird’s challenge to the decision
In its application for review, Forest & Bird sought a declaration that the Council’s decision was unlawful and an order quashing it. Forest & Bird pleaded numerous errors of law, which the High Court later grouped under the following headings:
(a)failure to act in accordance with the principles set out in s 14 of the LGA;
(b)failure to properly apply the SEP;
(c)failure to consider community views and “preferences” under s 78 of the LGA;
(d)failure to consider the scientific consensus on anthropogenic climate change;
(e)failure to take account of:
(i)Council plans and policies in terms of s 80 of the LGA; and
(ii)the LGLCCD;
(f)legally erroneous reasoning as to a “loss of control”; and
(g)legally erroneous reasoning through the Council’s failure to inform itself.
Forest & Bird also pleaded the Council had acted unreasonably in making the decision because “it is unreasonable to facilitate the expansion of coal mining operations in the District in view of [identified climate change considerations]”.
High Court decisions
Strike-out
NBC applied to strike-out Forest & Bird’s claim, essentially on the grounds that:
(a)the access permit did not permit any commercial mining of coal, and any such mining that might actually occur in the future may only follow the granting, by the Crown, of a mining permit, a further access agreement with the Council, and a publicly notified resource consenting process under the RMA;
(b)the impugned decision concerns the Council’s entry into an agreement in its capacity as a private landowner, not as a public body, which means the decision was not amenable to judicial review; and
(c)the proceedings had been brought for collateral purposes, in that Forest & Bird is using this litigation as a public platform from which to advocate its own views on the larger topic of climate change.
After hearing from the parties, Associate Judge Johnston declined to rule on the strike-out application. He directed instead that the application be heard together with the substantive judicial review application.[34]
Judicial review
[34]Royal Forest & Bird Protection Society of New Zealand Inc v Southland District Council [2021] NZHC 2977 at [35].
In rejecting Forest & Bird’s claims (as summarised at [69] above), Osborne J found:
(a)while the principles referred to in s 14 of the LGA may be useful when exercising other powers and functions under, or interpreting other provisions in, the LGA, by and of themselves they are not, effectively, justiciable;[35] and
[35]Judgment under appeal, above n 1, at [63]–[71].
(i)any failure to have regard to the non-mandatory s 14 principles would not invalidate the decision;[36] but
(ii)in any event, Forest & Bird had not established that the Council had failed to have regard to those principles;[37]
(b)there had been no failure properly to apply the SEP because, for reasons the Judge considered were open to the Council, the access decision was not seen as a “significant decision” and the subsequent choice not to seek community views or undertake some other form of community engagement was a proper exercise of the discretion reserved to it under s 79(1) of the LGA as to how to comply with ss 77 and 78;[38]
(c)it followed from this finding that there had been no wrongful failure to consider community views under s 78 of the LGA;[39]
(d)for similar reasons, whether and to what extent the Council took into account the scientific consensus on anthropogenic climate change was a matter for the Council’s discretion and any criticism of it would amount to an impermissible challenge on the merits;[40]
(e)section 80 of the LGA (which requires local authorities to identify decisions that were inconsistent with any policy or plan adopted by the local authority) could not operate to invalidate the access decision and was not engaged by the Council’s alleged failures to take account of the SEP or the LGLCC Declaration;[41]
(f)Forest & Bird’s argument as to a “loss of control” was predicated on an erroneous understanding of the CMA regime and, in particular, on the wrong belief that the regime empowered the Council (as landowner) to block access being granted by the Minister if the Council itself declined to grant it;[42] and
(g)the alleged failure by the Council to “inform” itself involved largely the same arguments as in relation to (d) above, and it was answered by the Council’s decision as to the significance of the decision and the fact that a fully notified resource consent application would later be required if the matter proceeded past the exploration stage.[43]
[36]At [77].
[37]At [78]–[80].
[38]At [94]–[98].
[39]At [119].
[40]At [129]–[130].
[41]At [137].
[42]At [155].
[43]At [156] and [161].
The Judge declined to accepted Forest & Bird’s categorisation of the impugned decision as a “climate change” decision and so as a decision (arguably) subject to a heightened standard of review.[44] And in any event, he said it was “not a case which ultimately turns on the differences or tensions between recent observations as to the intensity of review”.[45]
[44]At [75].
[45]At [74].
The Judge also accepted — at least in part — NBC’s submission that there was a meaningful distinction to be drawn between the Council making a decision under the CMA as a private landowner and the Council making a decision under the RMA as regulator. This can be seen in his rejection of the first (s 14) ground of review, after finding that the s 14 principles were not mandatory considerations:
[78] Had that not been the case, I would in any event have found that Forest & Bird has not established that the Council in fact failed to consider the s 14 principles. This was a decision in relation to access to land under the CMA. The Council was not the body charged by statute with authorising the exploration for or mining of minerals. The Council’s consideration of principles therefore needed to relate to the relatively narrow question of the impact of New Brighton’s entry onto the land (should access be granted). The Committee had expressly reported to Council … that community views had not been sought, with staff anticipating (clearly correctly) the community would hold a wide range of views on the topic of coal exploration and mining at Ohai. That said, the Committee recorded that there would be a consideration of community views through any resource consent process associated with any mine developments.
[79] Given the issue before the Council was the question of access, for the purposes of s 14 the level of regard to the diversity of community views was sufficient. Some would be in favour, probably strongly. Some would be opposed, probably strongly. It accorded with a principled approach, in those circumstances, for the Council to take the view that adverse community views, whether based on issues of anthropogenic climate change or otherwise, should not cut across the narrow issue of whether to grant access and that the appropriate context for further consideration of community views and impacts would be when (if at all) New Brighton came to seek the necessary consents or permissions to extract any coal.
Lastly, as far as the unreasonableness claim was concerned, the Judge said:
[174] Significantly Forest & Bird’s allegation that the Council acted unreasonably is expressly premised on the basis that the Council unreasonably “facilitated the expansion of coalmining operations in the District”. There is a material difference between facilitation — that is making something easier — and approving or giving that thing a “legal go-ahead”. It is clear from the record that councillors appreciated they were not giving “the expansion of coalmining operations in the District” the legal go-ahead. The Council focused, in accordance with the scheme of the CMA, on the access arrangement being requested by New Brighton under the CMA. While it may be semantically correct to describe an access arrangement as something that “facilitates” a subsequent expansion of coalmining, it is fundamentally important to considering the reasonableness of the Council’s approach that the Council, by agreeing to enter into an access arrangement, was not approving the expansion of coalmining.
[175] There was a distinct logic to the Council’s approach in reaching the Decision. The Decision falls well short of being “perverse” or “absurd”.
In light of his rejection of all the grounds of review, it was unnecessary for the Judge to consider the two affirmative defences pleaded by NBC, namely that:
(a)The decision was not unreasonable because it was one made by a private landowner to enter into a commercial contract.
(b)Review would be futile and the issues raised are moot because the agreed exploration has been completed and any mining is dependent upon other authorisation, including a resource consent which would itself proceed on a fully-notified basis.
Costs
In its substantive judgment, the Court also determined the question of costs on the earlier strike-out application. The Court said:[46]
[26] New Brighton applied on 31 August 2021 for an order striking out Forest & Bird’s statement of claim. On 4 November 2021, Associate Judge Johnston, following a hearing, declined to rule on the strike-out application. He directed instead that the application be heard together with the substantive judicial review application. The Associate Judge reasoned that the necessary consideration of the merits meant that the Court would need to have all available affidavit evidence before it before reaching a concluded view on the merits. At this hearing Mr Gordon has not pressed for a determination of the interlocutory application and it will be formally dismissed given the Court is determining the issues substantively. Accordingly, there will be no costs awarded in relation to the interlocutory application.
[46]Footnote omitted.
In a later separate judgment, the High Court awarded both respondents costs in relation to the substantive judicial review proceeding on a 2B basis.[47] The Court held there was no reason to depart from the general rule that costs follow the event. The Judge noted that Forest & Bird is an experienced litigant, the presence of a public interest factor was “debatable”, the decision was narrow in scope, and ratepayers should not have to bear the full costs of defending the proceedings.[48]
The judicial review appeal
Grounds
[47]Royal Forest & Bird Protection Society of New Zealand Inc v Southland District Council [2023] NZHC 862 at [31].
[48]At [24].
Forest & Bird’s grounds of substantive appeal were expressed or summarised in a number of ways. In our view, however, the essence of those grounds was that the High Court was wrong to reject the contention that the Council had erred in three very interrelated ways:
(a)by assessing the access decision as “not” significant; and so
(b)by deciding that consultation or seeking the views and preferences of persons likely to be affected by, or to have an interest in, the decision was not required; and
(c)considering that any need for consultation or public engagement could be addressed by the imposition of the downstream publicly notified resource consent condition.
Forest & Bird also maintained on appeal that the Council’s decision was unreasonable and that, in light of the climate change context,[49] the courts should apply a “heightened scrutiny” standard of review.[50]
[49]Whether the decision here could properly be termed a “climate change decision” was contested by the respondents.
[50]The proposition that decisions relating to climate change require “heightened scrutiny” on judicial review has its origins in two relatively recent decisions of the High Court: Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council [2020] NZHC 3228, [2021] 3 NZLR 280 at [51]; and Lawyers for Climate Action NZ Inc v Climate Change Commission [2022] NZHC 3064, (2022) 24 ELRNZ 358 at [74].
NBC and the Council both made submissions opposing the appeal on the merits. NBC also maintained the position it had taken in the High Court and submitted that the issues raised on appeal are moot, and so formally supported the High Court judgment on that (other) ground.
Analysis
At the hearing before us, it was the contention about the error in imposing the downstream publicly notified resource consent condition that was the focus of much of the oral submissions made by Mr Salmon KC.[51] We therefore begin with that issue.
[51]The key argument in that respect was not expressly advanced in Forest & Bird’s written submissions and nor did it receive any attention in the High Court’s decision. It is, however, accepted that the argument was made in the High Court and also that it is implicitly encompassed in the notice of appeal.
In essence, Mr Salmon said that the Council’s decision to rely on a subsequent fully notified RMA process as the appropriate way to satisfy the need for public engagement or consultation was wrong because s 104E of the RMA remained in force at the time the Council made that decision. The effect of that (and the Supreme Court’s decisions in Genesis and Buller Coal) was to preclude the Council from considering downstream climate change effects when considering applications for resource consents. So, a condition on the access permit requiring that any subsequent application for resource consent relating to mining-related activities would proceed on a fully notified basis was a legally empty gesture.
Importantly, and although it could be assumed that the Council was aware that s 104E was to be repealed as from November 2021 (because the Resource Management Amendment Act had already been passed), it would (in theory) have been possible for NBC to have applied for a resource consent before that date.[52] Had it done so, the existing position (that any downstream effects on climate change of the activity for which a consent was sought was irrelevant) would have prevailed.[53] On that analysis, it might be concluded that the Council’s “deferral” decision was based on an error as to the relevant legal position. And, in turn, if the “deferral” option was the basis (or one of the bases) for determining that the question of access was not “significant” — and so, for deciding not to engage publicly about it — it might be said that those two subsequent decisions (those being the principal targets of Forest & Bird’s challenge) were also infected by the same error.
[52]As noted earlier, NBC in fact completed its exploration pursuant to the access permit some months before the commencement of the amendment.
[53]We were advised that this argument was advanced on behalf of Forest & Bird in the High Court but, as noted earlier, it was not addressed in the decision under appeal.
We acknowledge there is some logic in this analysis, at least when the “deferral” point is considered in isolation. But ultimately, we consider the “deferral” error is not a vitiating one, for the reasons that follow.
We begin by recording that we put to one side any argument that the Supreme Court’s analysis in Buller Coal arguably supports the Council’s position more than it does the position of Forest & Bird.[54] The legal landscape has changed since that case was decided — including, in particular, by the aforementioned enactment of s 5ZN by the Zero Carbon Act which made climate change a permissive consideration here.
[54]We make that point because the Court in Buller concluded that Parliament (at that time) intended consideration of the downstream effects of any given activity on climate change was a matter for central, not local, government. Although that conclusion was reached expressly in the context of local government decision-making under the RMA, it would arguably be strange if a different approach was to be applied to decision-making by a local authority acting as a private landowner under the CMA at that time in light of Buller. As noted, however, the legal landscape has changed since then.
The much more fundamental point is that Mr Salmon’s argument is genuinely moot.[55] By the time of the hearing in the High Court, NBC had not only completed its exploration activities and made no resource consent application but the repeal of s 104E had come into effect. To the extent a resource consent application was to be made by NBC now or in the future, the condition imposed on the grant of access would potentially bite precisely as intended, and in a meaningful way.[56] Despite the public law context making it somewhat more likely that an appellate court might exercise its discretion to determine a moot appeal,[57] the reality is that the issue was moot at the time of the first instance hearing and — given the material change in the statutory regime — the grant of declaratory relief (as sought by Forest & Bird) would be empty.
[55]See the discussion of the Supreme Court in Rv Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721 at [16].
[56]The precise effect of the repeal on the operation of s 104 (particularly in a case concerned with the indirect effects of climate change) would, of course, need to be considered.
[57]Baker v Hodder [2018] NZSC 78, [2019] 1 NZLR 94 at [33]; and Regina v Secretary of State for the Home Department, Ex parte Salem [1999] 1 AC 450 (HL) at 455–457.
Secondly, s 79(3) of the LGA required the Council to take account of the fact that the decision was being made under the CMA. Under that Act, the Council was making a decision not as a regulator but as a landowner. In a sense, and as the Council here recognised, the key question for it to consider here was whether it should shift responsibility for, and control of, the decision to the Minister and, potentially to yield to the arbitral processes under the CMA.
Although we acknowledge the “but for” analysis urged on us by Mr Salmon — that there can be no coal mining without the grant of access for exploration — the reality also is that a denial of access by the Council did not mean access would not be granted. Moreover, while granting access may have opened the first “door”, doing so does not mean that the subsequent necessary doors will also be open, or even tried: a mining permit may or may not be sought and (if it is) it may or may not be granted. Similarly, the necessary resource consents may or may not be granted and will proceed on a fully notified basis.
Overall, it is difficult to see the legal basis on which climate change considerations should have played a greater part when the Council was assessing whether the access decision here was “significant” under the LGA, or in determining whether some form of public engagement or consultation was required. As noted earlier, s 78(3) makes it clear that this requirement does not, by and of itself impose a duty to consult. Any need for consultation turns, in large part, on the significance of the decision in question.
Lastly, it follows that we consider the s 78(1) requirement to consider the “views and preferences of persons likely to be affected by, or to have an interest in, the matter” was adequately met here. Contrary to Forest & Bird’s submissions, nor does s 78 require “conscious steps” to secure information on community views and preferences in relation to every local authority decision.
The question of community views and preferences was squarely before both the SAC on 23 March 2021 and before the full Council on 4 April 2021. The Council accepted the SAC’s advice that the access decision was not “significant”, was aware that the decision was about access (not permission to mine), and was to be made in its capacity as landowner under the CMA. It has not been, and could not be, suggested that the advice given to the Council that “[s]taff anticipate the community holding a wide range of views on this topic so there is a high risk that any engagement exercise would be inconclusive” was wrong.[58]
[58]For completeness, we record that the principles set out in s 14 of the LGA make no difference to our conclusions. Section 79(2) does not require the Council to have regard to the s 14 principles when making decisions. Rather, the requirement is concerned with discretionary judgments made under s 79(1) about how it is to achieve compliance with ss 77 and 78. We agree with the High Court Judge that the principles are not mandatory relevant considerations when making substantive decisions.
It follows that none of the three alleged errors summarised at [80] above are therefore made out. And, in light of that conclusion and the views we have expressed, nor can any possible question of unreasonableness (or intensity of review) arise.
The substantive appeal must be dismissed.
The costs appeals
Costs on the strike-out application
In its notice of appeal dated 3 April 2023, no challenge was made by Forest & Bird to the High Court’s earlier decision not to award costs in respect of the strike-out application. But its amended notice dated 3 May 2023 did purport to appeal against that decision. As NBC rightly submits, this is out of time.[59] No application for an extension of time has been made.
[59]Any appeal against this decision was required to be brought within 20 working days of the substantive judicial review judgment, namely by 3 April 2023.
Although the fact that the strike-out costs appeal has been brought out of time suffices to dispose of the matter, we also record our agreement with the respondents that Forest & Bird cannot be said to have succeeded in defending the strike-out application in the orthodox sense. Although the strike-out was dismissed in formal terms, that was because the substantive application for review had been determined against Forest & Bird. Moreover, as this judgment makes clear, there was also a real issue of mootness here.
Costs on the judicial review proceeding
Forest & Bird appeals the substantive costs decision, essentially on the basis that the proceeding was brought in the public interest. But while that may be so, we agree with the High Court Judge that:
(a)costs ordinarily follow the event;
(b)Forest & Bird is an experienced litigant with a full understanding of the operation of the costs regime and principles;
(c)its application for review (like its appeal) was unnecessarily sweeping and focused on what are inherently discretionary local authority decisions;
(d)by the time of hearing in the High Court, the application had a high chance of being regarded as moot;
(e)there has been a real cost to ratepayers in having to defend the proceedings; and
(f)as before us, there was no material overlap in the submissions made by each respondent.
Costs lie in the discretion of the Court. In order to succeed, a legal error or departure from established principle must be established. No such error is evident here.
The costs appeal is dismissed.
Result
The appeals are dismissed.
The appellant must pay each of the respondents costs for a standard appeal on a band A basis, with second counsel certified and usual disbursements.
Solicitors:
LeeSalmonLong, Auckland for Appellant
Simpson Grierson, Wellington for First Respondent
MinterEllisonRuddWatts, Wellington for Second Respondent
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