Stewart v Attorney-General
[2023] NZHC 2234
•17 August 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-0004
[2023] NZHC 2234
UNDER the Declaratory Judgments Act 1908 and Judicial Review Procedure Act 2016 IN THE MATTER
of an application for declarations and judicial review of a decision
BETWEEN
RAYMOND JOHN STEWART
Applicant
AND
ATTORNEY-GENERAL
First Respondent
MINISTER OF ENERGY AND RESOURCES
Second Respondent
CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND
EMPLOYMENT
Third RespondentCOLD GOLD CLUTHA LTD
Fourth Respondent
Hearing: 31 July 2023 Counsel:
L A Andersen KC for Applicant
K M Anderson and S M Perera for First, Second and Third Respondents
F B Barton for Fourth Respondent (excused from attendance at hearing)Judgment:
17 August 2023
JUDGMENT OF RADICH J
STEWART v ATTORNEY-GENERAL [2023] NZHC 2234 [17 August 2023]
Introduction
[1] The applicant (Mr Stewart) has a gold mining permit on the Clutha River. In broad terms, it runs, in two separate strips, for approximately 21 kilometres along the stretch of the river that passes through the town of Beaumont.
[2] An earlier gold mining licence, which the permit replaced, was described by reference to the physical banks of the river. The permit itself is described largely by reference to the cadastral boundaries of the river.
[3] The Clutha River does not sit precisely where it did at earlier points in time. Maps released by the Ministry of Business Innovation and Employment (MBIE) in 2017 purport to show the permit area to be where it was when it was granted. However, that it not where the river now is.
[4] In the substantive proceeding,1 Mr Stewart seeks orders and declarations relating to the location of the permit area relative to the river and to adjacent mining permits.
[5] In the interests of the substantive proceeding being determined efficiently, the Court has been asked to address two preliminary questions:
(a)Did the boundaries of mining licence 323156 (ML 56) move with changes to the Clutha River?
(b)Do the boundaries of mining permit 41934 (MP 34) move with changes to the Clutha River?
[6] Mr Stewart says that the answer to both questions is yes. He says that the current gold mining permit – MP 34 – has exactly the same legal boundaries as the gold mining licence it replaced – ML 56. He says that the boundaries of ML 56 were defined at any given time by the true left and right banks of the Clutha River and that, therefore, MP 34 is defined in the same way.
1 Brought under the Declaratory Judgments Act 1908 and the Judicial Review Procedure Act 2016.
[7] The first to third respondents say that the answer to both questions is no. They say that the boundaries of ML 56 were fixed by reference to the banks of the Clutha River when the licence was granted but they did not move as the river moved. They say that MP 34 is, in any event, distinct from ML 56 and that its boundaries were fixed by reference to the cadastral boundaries of the Clutha River when the permit was granted; irrespective of where the actual river then was or now is.
[8]The fourth respondent endorses the position of the first to third respondents.
Factual background
The mining licences and mining permits
[9] The substantive proceeding involves ML 56 and MP 34, as introduced already, together with another mining permit which, as I come on to describe, sits alongside MP 34 in the Clutha River.
[10] On 6 April 1992, ML 56 was granted to Phillip Wilson under the Mining Act 1971 (the 1971 Act) to enable mining for gold on the Clutha River. The licence document describes the licence area in the following way:
All the area of land being Part Bed of the Clutha River situated in Blocks I, III, IV, VII, IX Beaumont Survey District, Blocks I, IV, XII Tuapeka West Survey District, Blocks I, XV, XVIII, XXI Crookston Survey District – Town of Dunkeld as is more particularly described in the Fourth Schedule and shown on the plan attached.
[11]The fourth schedule to the mining licence was in the following terms:
All that area of the Clutha River Bed being a 30 metre strip of river bed adjacent to the true left bank and a 30 metre strip of river bed adjacent to the true right bank commencing at the confluence of the Clutha River with the Talla Burn; thence continuing downstream for approximately 21 kilometres to the southernmost point of Birch Island.
[12] The “plan attached” to the mining licence comprised two maps – a topographical map and a cadastral record sheet.2 The mining licence area was drawn on the map and on the record sheet. The record sheet included two annotations
2 The cadastral record sheet was certified by the Chief Surveyor of the Otago Land District Council pursuant to s 74(1)(d) of the Mining Act 1971.
alongside the hand-drawn licence area. The first reads “30 metre strip of riverbed on each bank” and the second, with arrows to the north and the south, reads “21 kilometres”.
[13] Condition 9.1 of the licence provided that “[m]ining operations shall be confined to the stream bed”.
[14] On 20 April 2006, Mr Wilson wrote to MBIE saying that he wished to surrender ML 56 to allow the applicant, with whom he had been in partnership, to “reapply for this exact same licence area for suction dredging”. The applicant applied for a mining permit on 8 May 2006. The application included a description of the permit area sought in largely the same terms as those used in ML 56 and described in paras [10] to [11] above.
[15] The application was granted and MP 34 was issued to Mr Stewart on 18 August 2006 under the Crown Minerals Act 1991 (the 1991 Act). However, the description of the mining permit area3 differed from the terms used in ML 56 and in the application for the permit.
[16] In MP 34, the description of the permit area is simply “all that area of land situated in the Central Otago and Clutha districts as is more particularly shown on the plan attached”.4 The plan attached shows the permit area largely by reference to the cadastral boundaries of the Clutha River.
[17] The first condition in MP 34 describes the work programme that is to be followed when mining under the permit. It involves mining at a minimum average rate of 50,000 cubic metres of gold-bearing gravels per year using a suction dredge.
[18] Condition 5 provides that, if it is required by the Chief Executive, the permit holder “shall clearly mark the boundaries of the permit or areas defined in the approved work statement of this permit by pegs, coloured tape or other approved means”.
3 Mining licences under the Mining Act 1971 came to be known as mining permits under the Crown Minerals Act 1991.
4 As specified in the First Schedule of MP 34.
[19]MP 34 has an area of 124 hectares whereas ML 56 had an area of
122.4 hectares.
[20] The third mining instrument that is relevant in the proceeding is mining permit 41879 (MP 79) which was granted to Daniel Walker (the majority shareholder in the fourth respondent, Cold Gold Clutha Ltd) on 15 August 2005 to allow mining in a large section of the Clutha River. Part of the permit area was adjacent to ML 56. Where it was adjacent to ML 56, MP 79 covered the middle of the river and excluded, specifically, those parts of the river that were within the ML 56 mining licence area.5 Essentially, for a portion of the Clutha River, MP 79 runs through the middle of the riverbed with the area covered by ML 56 (and, subsequently, MP 34) running by the banks of the river on each side of it.
The maps and the substantive proceeding
[21] While not relevant to the questions of law that are to be addressed in this proceeding, it is useful for the purposes of context to mention that, in 2017, MBIE remapped the mining area for MP 34, using a new online system. The applicant says that the remapped area shows the MP 34 mining area to be predominantly on dry land. The remapped area causes understandable difficulty for the applicant as his mining permit is for suction dredging which can only be performed in water. Among other grounds of review, the applicant claims in the substantive proceeding that the 2017 maps show inaccurate boundaries.
Relevant legislation and regulations
The Mining Act 1971
[22] ML 56 was granted under the 1971 Act. The 1971 Act had no purpose provision but its long title described it as an Act “to consolidate and amend the law relating to mining and to provide improved facilities for the development of mineral resources”. Licences were granted under s 69 which gave the Minister a broad discretion to grant mining licences on such conditions as were thought fit. 6
5 MP 79, in 2019, amalgamated with MP 53215, although MP 79 remains the operative permit at all times relevant to this proceeding.
6 Which was amended in 1982 by s 20 of the Mining Amendment Act 1981.
[23] Sections 71 to 76 prescribed a number of requirements for mining licences. Under s 71:
(a)Before making an application, an applicant was to “mark out in the prescribed manner the land in respect of which a licence is sought. Any such marking out need not be done by a registered surveyor”.7 Applications were to be accompanied by a plan that had the land in respect of which a licence was sought “clearly delineated and identified on it by reference to the area of land and its legal description and ownership”.8
(b)The plan needed to show details of the ground marks used in marking out the land and sufficient information relating to cadastral boundaries, survey monuments, topographical features or existing mining privileges to enable the area to be located on the ground and its position fixed in relation to existing surveys and land titles.9
[24] Under s 73, a mining licence was not to be granted until the land in relation to which the licence was sought was surveyed by a registered surveyor. The survey plan needed to be received by the Secretary and certified by the Chief Surveyor. However, under s 74, a survey was not needed if the land was, in the opinion of the Chief Surveyor, “already adequately defined on plans approved as to survey by the Chief Surveyor and the applicant refers to those plans in his application”; or where the Secretary considered, after consultation with the Chief Surveyor and having regard to the nature of the application and extent of the location of land, that the plan submitted with the application “adequately defines the boundaries of the land”.10
[25]Section 76 was in the following terms:
76. Boundaries of land in respect of which licence granted to be fixed and kept marked—(1) The dimensions and boundaries of the land in respect of which a mining licence is granted shall be fixed by the Minister at the time of the grant.
7 Mining Act 1971, s 71(1).
8 Section 71(2).
9 Section 71(3)
10 Section 24 of the Mining Amendment Act 1981 added to s 71(d) that “the applicant shall be responsible at all times for the ground monumentation for an application that is exempted from the survey requirements under this paragraph”.
(2) While the licence is in force the licensee shall keep the boundaries marked in a distinctive manner or, if the manner of keeping the boundaries marked is prescribed, in the prescribed manner, and shall point them out to any holder of a prospector’s right or applicant for a mining privilege forthwith and not in any event later than forty-eight hours after being served with a notice in writing requiring him to do so.
[26] Under the 1971 Act, land “includes water; and also includes the foreshore and seabed within the meaning of s 27”.11
[27] Under s 115 of the 1971 Act, if any area covered by an application for a mining licence was wholly or partly covered by water, it was not necessary to mark the area out.
[28] The rights of holders of mining licences were described in s 87. They included rights to work and mine the land, to take and remove minerals and to do all things necessary to carry out mining operations on the land. The holder of a licence was entitled to use, occupy and enjoy the land to which the licence related and was to be “the owner of the minerals lawfully mined in respect of which the mining licence was granted”. These rights were to be “exclusive rights for mining purposes”. 12
[29] Under s 139, every mining privilege was “deemed to be a chattel interest” which “subject to the provisions of this Act, may be sold, encumbered, transmitted, seized … or otherwise disposed of as fully as a chattel interest in land”. A mining licence was to be noted on certificates of title in accordance with s 142.
The Mining Regulations 1981
[30] The Mining Regulations 1981 (the 1981 Regulations) were made under the 1971 Act. They dealt, amongst other things, with the marking out of land for the purposes of the 1971 Act. Relevant terms of the 1981 Regulations, for present purposes, are these:
26 Marking out
The marking out of land for the purposes of the Act and these regulations shall be done in the following manner:
…
11 Section 2 (definition of “land”).
12 Section 87(3).
(f)In the case of a mining licence over the bed of a stream from bank to bank, the boundaries of the licence shall be the banks of the stream as existing at the time when the licence was marked out, unless the Minister otherwise determines:
(g)Subject to the provisions of section 115 of the Mining Act 1971, when the boundary of the mining privilege is on the bank or in the bed of a watercourse, then so far as it is not practicable to mark such boundary by means of pegs, cairns, stones, mounds, tree blazing, or trenches, arrow-headed marks (thus ↑ ) shall be cut or clearly indicated on trees, rocks, or other fixed natural objects above high-flood mark at every corner or angle of each boundary line …
…
(k) The marking out shall be maintained until the application for the mining privilege is finally disposed of under section 109 of the Act, and, where a licence is granted, throughout the term of the licence.
The Crown Minerals Act 1991
[31] The Crown Minerals Act 1991 (the 1991 Act) came into force in July 1991 and applies to MP 34 and MP 79. When enacted it did not have a purpose provision.13 Substantial amendments were made in 2013. The description provided here is of the provisions as they were when MP 34 and MP 79 were granted.
[32] The long title provided that it was an Act to “restate and reform the law relating to the management of Crown owned minerals”. A purpose provision was included for minerals programmes which included providing for the “efficient allocation of rights in respect of Crown owned minerals”.14
[33] When MP 34 and MP 79 were granted, applications for permits were made under s 23 which provided that “[a]ny person may apply to the Secretary for a permit in respect of a mineral in land, whether or not there is a minerals programme for the mineral”. Before granting a permit, the Minister could require the proposed land to be surveyed and that a survey plan be certified by the Surveyor-General. The requirement to survey was discretionary.15
13 A purpose provision was added in May 2013 by s 6 of the Crown Minerals Amendment Act 2013 (No 14) and is to “promote prospecting for, exploration for, and mining of Crown owned minerals for the benefit of New Zealand.”
14 Crown Minerals Act 1991, s 12 (as at 3 September 2007).
15 Section 29.
[34] Mining rights were set out in s 30. They included rights to prospect or explore for and to mine the minerals sought. The rights were exclusive to the permit holder (subject to subs (8) and unless the permit provided otherwise).16 Under s 30(8), if a permit was granted over land that was subject already to a permit, the same rights could not be conferred without the prior written consent of the current permit holder.
[35] Under the 1991 Act, Crown-owned minerals were managed through minerals programmes. The Minerals Programme for Minerals Other Than Coal and Petroleum, was issued in October 1996 under s 18 of the 1991 Act and was the programme that was in force when MP 34 was granted. The minerals programme referred to the “efficient allocation of rights” (mentioned in [32] above) as being “… distinct from the concept of efficient extraction of the resource”.17 The programme went on to provide:18
The efficient allocation of permits requires that the physical boundary of the permit area is clearly defined and does not overlap with any other granted permit or existing privilege unless there is consent for this to occur or the Minister has determined that non-exclusive permits may be granted. Accordingly, all permits are defined by maps and plans that clearly identify and delineate the permit’s area. … For mining permits, a precise definition of the permit boundaries is required and this will often necessitate that some form of survey is undertaken prior to the permit being granted. …
…
The purpose of a survey is to eliminate the possibility of overlaps between adjoining permits (or permits and existing privileges) and provide the accurate location and total area of a permit. …
[36]Under s 92 of the 1991 Act, a permit was neither real nor personal property.
The Crown Minerals (Minerals and Coals) Regulations 1999
[37] Under the Crown Minerals (Minerals and Coals) Regulations 1999 (the 1999 Regulations), applications for mining permits under s 23 of the 1991 Act were to be made using form 3 in schedule 1 to the regulations. Within that form a permit plan was described as “[a] plan that locates and defines the permit application area” and the requirements of a permit plan (which was required to be submitted alongside an application) were expressed in the following terms:
16 Section 30(7).
17 Ministry of Commerce Minerals Programme for Minerals other than coal and petroleum
(1 October 1996) at [2.18].
18 At [9.2.2]–[9.2.3]
The plan must clearly identify the location of the proposed permit. It must—
·Define the permit application area with a bold black line; and
·Show enough detail to enable the area to be located on the ground and to fix its position in relation to existing surveys or land titles. This could be details of cadastral boundaries or survey monuments or topographical features.
Question 1
[38] The applicant says that the answer to the first question is yes; the boundaries of ML 56 move with the Clutha River so that there is always a 30-metre strip adjacent to each riverbank as described in the licence. The applicant relies upon the description of the licence area, upon the position that the licence could only be granted over land capable of being mined and suction dredged, and upon the fact that the Chief Surveyor decided that a survey was not needed for the licence area prior to the grant of ML 56. The applicant says that answering yes to this question provides a more workable and less complicated solution to identifying the permit area. He says that the only way the permit area can be identified is with reference to the banks of the Clutha River and there is nothing suggesting that the licence could not be fixed to something that moved.
[39] The Crown’s position is that the answer to the first question is no. It says that, while the boundaries of ML 56 were fixed by reference to the physical banks of the Clutha River when the licence was granted in 1992, those boundaries did not move with any physical changes to the river after the licence was granted.
[40]For the reasons that follow, the Crown’s position is to be preferred.
The terms of the licence document
[41] The description of the licence area in ML 56 tells us that it is an area of land being part bed of the Clutha River and that it is more particularly described in the fourth schedule of the licence and on the plan attached. The fourth schedule tells us that the licence area is a 30-metre strip of riverbed adjacent to the true left bank and a 30-metre strip of the riverbed adjacent to the right bank commencing at the confluence of the Clutha River with the Talla Burn and then continuing downstream for approximately 21 kilometres.
[42] The area is then hand drawn both on a topographical map and on a cadastral record sheet. As Ms McLaughlin (a licensed cadastral surveyor who gave evidence for the first, second and third respondents)19 has said, the boundaries shown on the topographical plan and the cadastral record sheet are not in exact agreement but that is unsurprising given that the boundaries are hand drawn. Ms McLaughlin said that the depictions on each plan sufficiently resemble one another to consider them as representing the same set of boundaries.
[43] It is clear from the terms of the licence that the licence area was described in 1992 with reference to the physical riverbanks. It is relevant also that condition 9 of the licence provided that mining operations were to be “confined to the stream bed”. The applicant says that the plain meaning of the words in the fourth schedule of the licence, together with condition 9, supports the conclusion that the licence area is “defined by riparian boundaries rather than by a fixed, geometric description”.
[44] However, it could equally be said that, if the permit area only included land covered by water at all times, then condition 9 would be redundant. Ms McLaughlin’s view is that boundaries such as those described in the fourth schedule are not “riparian” and that a cadastral surveyor would not have been likely to refer to boundaries of a mining privilege as “riparian”. Her evidence is that the holder of a mining licence might enjoy riparian rights by virtue of the interest they have in land abutting the water but that the boundaries in ML 56 were defined at the location of the bank and held static there in the sense that they did not move if and when the banks of the Clutha River moved over time.
[45] As Ms McLaughlin said when cross-examined, the legal boundaries of the Clutha River do not always align with its actual banks.
[46] As I see it, the terms of the licence itself do not resolve the question the Court is required to answer.
19 And who was cross-examined by counsel for the applicant.
The Mining Act 1971 – the requirement for boundaries to be “fixed”
[47] The respondents say that the boundaries of a mining licence cannot be ambulatory as s 76(1) of the 1971 Act requires them to be “fixed by the Minister at the time of the grant”. They say that movable boundaries would be inconsistent with the general statutory scheme.
[48] The applicant says that the requirements for fixing boundaries and marking them out were essentially overridden by the survey and marking out exemptions in the 1971 Act for mining licences which, as here, were conferred over land covered by water.
[49] The term “fixed” was not defined in the 1971 Act and featured only in ss 71 and 76. Section 71 carried a requirement for an applicant to “mark out” the area over which a licence was sought in the prescribed manner. Under s 76, the licensee was to “keep the boundaries marked in a distinctive manner”.
[50] The scheme of the 1971 Act provides further assistance. As is explained in greater detail in [22]–[25], the plan to accompany a licence application was to “clearly delineate” the licence area, providing sufficient information on the boundaries. A survey was required unless the Chief Surveyor regarded the land to have been “already adequately defined”. Under s 76, boundaries needed to be “kept marked” and “fixed”. They needed to be marked out in a distinctive manner. But where the permit area related to an area covered by water, it was not necessary to mark them out.
[51] As mentioned already, the Chief Surveyor did not, in terms of s 74 of the 1971 Act, require a survey of the land for ML 56 to be made. The applicant says that this shows the boundaries did not need to be fixed.
[52] Ms McLaughlin said that it is possible that the Chief Surveyor certified the plan as being sufficient to identify the licence area given the size of the area, the apparent absence of adjoining licences at the time the application was granted20 and the ability to determine the location of the riverbanks at the time the licence was
20 Such that there would not be overlaps between ML 56 and adjoining licences.
granted, if required, at a later date. In her opinion, given the length of the licence area, the nature of the terrain and the level of the vegetation, surveying the entire mining licence area would in 1992 have been “an extremely time-consuming, challenging and costly task that would potentially have required months of field work.”
[53] The onerous nature of conducting a survey at the time is lessened now through online “georectification” resources which enable the position of riverbanks in a historic sense to be digitally traced. Ultimately, I do not see the fact that a survey was not required for ML 56 as advancing the position one way or another.
[54] The real focus, in considering the statutory scheme, is on the requirement in s 76 for the boundaries of the mining licence area to be “fixed”.
[55] The respondents have referred to several cases in support of their submission that the term “fixed” has a degree of permanence and immovability.21 However, the cases discuss the term in difference contexts – whether a structure is fixed to the land and whether a certain plant is fixed plant. And the meaning of word needs to be ascertained from its particular context.
[56] The ordinary meaning of the term is of some assistance. The respondents provided the Court with several dictionary definitions of “fixed”. They include the following: “to place in a definite and more or less permanent position”,22 “definitely and permanently placed or assigned; stationary or unchanging in relative position; definite, permanent, lasting:”23 and “place definitively or permanently, establish, station”.24 I agree with the respondents that these definitions suggest that an area that is “fixed” does not move or change.
[57] Determining the meaning of the word “fixed” in this context is assisted further by considering the requirements for “marking out” land under the 1981 Regulations.
21 National Bank of New Zealand v Commissioner of Inland Revenue [1992] 1 NZLR 250 (HC); Ohawini Bay Ltd v Whangarei District Council EnvC Auckland A068/06, 31 May 2006; and Antoun v Hutt City Council [2020] NZEnvC 6, (2020) NZRMA 359 at [46] and [57].
22 Oxford English Dictionary (online ed, Oxford University Press) (definition of “fix, v.”).
23 Shorter Oxford English Dictionary (6th ed, 2007) (definition of “fixed”). .
24 New Zealand Oxford English Dictionary (2005) at 401 (definition of “fix”).
The Mining Regulations 1981
[58] The Court needs to adopt a cautious approach if seeking to use regulations to assist in the interpretation of an ambiguous term in a statute. In Hanlon v Law Society, Lord Lowry addressed the issue of the extent to which regulations may be used to assist in construing a statutory provision when the terms of the regulations are clearly relevant. After reviewing cases and leading textbooks, he formulated the following propositions:25
(1) Subordinate legislation may be used in order to construe the parent Act, but only where power is given to amend the Act by regulations or where the meaning of the Act is ambiguous.
(2) Regulations made under the Act provide a Parliamentary or administrative contemporanea expositio of the Act but do not decide or control its meaning: to allow this would be to substitute the rule-making authority for the judges as interpreter and would disregard the possibility that the regulation relied on was misconceived or ultra vires.
(3) Regulations which are consistent with a certain interpretation of the Act tend to confirm that interpretation.
(4) Where the Act provides a framework built on by contemporaneously prepared regulations, the latter may be a reliable guide to the meaning of the former.
(5) The regulations are a clear guide, and may be decisive, when they are made in pursuance of a power to modify the Act, particularly if they come into operation on the same day as the Act which they modify.
(6) Clear guidance may also be obtained from regulations which are to have effect as if enacted in the parent Act.
[59] The 1981 Regulations were not made contemporaneously with the 1971 Act. However, I do agree with the respondents that a lack of contemporaneity goes more to weight or to the degree of persuasiveness, rather than precluding outright the use of secondary legislation as an aid to interpretation of an ambiguous term in legislation.26
[60] As the meaning of the term “fixed” in the 1971 Act in this context is ambiguous and as it appears that the drafters of the legislation had regulations in mind when
25 Hanlon v The Law Society [1981] AC 124 (HL) at 193 and 194.
26 A position that is supported in Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 350, citing Monsanto Canada Inc v Ontario (Superintendent of Financial Services) [2004] 3 SCR 152 at [35].
drafting ss 71 and 76 – which require “marking out" – I see it as useful to refer to the 1981 Regulations.27
[61] As mentioned earlier, reg 26 of the 1981 Regulations prescribed the manner in which land was to be “marked out” in the context of a mining licence application under the 1971 Act. In the case of a mining licence over the bed of a stream from bank to bank, the boundaries of the licence were to be “the banks of the stream as existing at the time when the licence was marked out, unless the Minister otherwise determines”. This provision can usefully be read alongside s 115 of the Act, mentioned at [27] which provides that it is not necessary to mark out an area that is wholly or partly covered by the waters of a river.
[62] Although the boundaries of ML 56 are not strictly bank to bank, this provision does address similar practical difficulties as those that are apparent in this case: it is not normally possible to mark out in a practical sense a licence area that is in whole or in part under water. In those circumstances, reference can be made to the banks of the stream “as existing at the time when the licence was marked out”.28 The boundaries are fixed to the location of the banks at the point in time at which the licence was granted. As Ms McLaughlin put it, “marking out is something that is undertaken to monument static boundaries”.
Purpose of the Act
[63] The meaning of legislation must be ascertained from its text and in the light of its purpose and its context.29 There is no purpose provision in the 1971 Act. Taken as a whole, it can be described as a statute to facilitate mining and to govern the use and development of land for mining purposes.
[64] The applicant says that ambulatory boundaries would be consistent with an Act that is to facilitate mining. He says that the Act should not be interpreted in such a way that there could be areas covered by a mining licence where mining could not in
27 The respondents note also that the Regulations were enacted shortly after the Mining Amendment Act 1981 came into force. That Act amended the provisions of the Mining Act as they related to the requirements for plans and surveys.
28 Mining Regulations 1981, reg 26(f).
29 Legislation Act 2019, s 10.
fact take place. He says that, as the licence was granted for suction dredging which can be conducted only in water, maintaining a boundary over dry land would be contrary to the purpose of the Act.
[65] The respondents say, on the other hand, that there are situations where an ambulatory boundary would be repugnant to the purpose of the Act. For example, if the distance between the banks of the Clutha River narrowed to less than 60 metres, and if the boundaries of ML 56 and MP 79 were to move with the riverbanks, then it is quite possible that MP 79 would have no permit area at all.
[66] I do agree with the respondents that conflicting outcomes such as these are such that the purpose of the Act does not much assist in considering the issue.
The scheme of the 1971 Act
[67] The respondents say that the approach they advance is consistent with the scheme of the 1971 Act. First, if the boundaries were movable, there would be an inconsistency with the exclusive rights a permit holder has under s 87(3) of the Act.
[68] Secondly, the respondents say that if licence areas could have movable boundaries then they could be granted over unknown land. This, they say, could defeat other provisions in the Act. For example, a mining licence may not exceed 400 hectares under s 69(3). Hypothetically, if a licence was granted over an area close to that maximum and the boundaries expanded to exceed it, the provision would be defeated.
[69] Another example is the prospect of a licence over unknown land defeating the consultation provisions in the Act – as consultation could only be effective if the ambit of a permit in its entirety is known.30
[70] A further example is the prospect of an ambulatory boundary adjacent to private land defeating the prohibition in ss 30 and 36 on mining private land without the prior consent of the landowner.
30 Mining Act, s 103B.
[71] The applicant suggested that the risk of overlap may not be real. It was suggested that if a movable mining licence came up against a fixed adjacent licence on land, then it could not overlap with that clearly defined land. Essentially, it is said that the location of the current licence – being the bed of a river – means that the licence area can fluctuate with the movements of the river but would never exceed the boundaries of fixed land next to the riverbanks.
[72] While the point the applicant makes has its attractions, I tend to agree with the points made by the respondents, which show ways in which the scheme of the 1971 Act would be defeated by movable boundaries.
Conclusion on ML 56
[73] Determining whether or not the boundaries of ML 56 move with the banks of the Clutha River requires an understanding of what “fixed” in s 76 of the 1971 Act means. Looking at the Act as a whole, alongside the ordinary meaning of “fixed”, and having regard to the 1981 Regulations, I do not see a basis for considering that the boundaries of ML 56 could be ambulatory.
[74] Parliament intended the boundaries of mining licence areas to be clearly “identified and delineated” on the map required with the application and in the permit itself. Just as an easement is to be clearly defined on a title to land, so too must a mining licence.
[75] If the boundaries of an interest in land such as a mining licence are unclear, so too would be the limits or extent of the rights the interest holder can enjoy against other interest holders in the land or adjoining owners. As the fourth respondent has said in its written submissions, a decision that boundaries could move with the river would have profound consequences for other parties, such as the fourth respondent. It would cause adjacent permit holders to need to be constantly alive to where the boundaries are at any given point in time. The uncertainty could lead to permit holders encroaching on mining areas of their neighbour without intending to do so.
[76] Accordingly, I do not consider that the boundaries of ML 56 moved with changes to the Clutha River. Parliament intended for the boundaries of a licence to be
clearly “identified and delineated”. While it may be the case that, as a result, natural processes reduce the area that a licence holder is able to mine in a licence area, the boundaries of the licence do not need to shift in order to avoid this consequence. I do not see Parliament’s intention to have been to ensure that mining operators could always conduct their operations to the maximum possible extent.
Question 2
[77] The applicant says that the boundaries of MP 34 move with changes to the Clutha River. He says that MP 34 replaced ML 56 only to enable the licence to be held by Mr Stewart, rather than Mr Wilson; Mr Stewart having worked with Mr Wilson on mining operations under ML 56. While the licence area is described in MP 34 in a different way, it is said that, as ML 56’s replacement, it should be regarded as being identical in all material respects. The argument is predicated on a finding on the first issue that ML 56 moved with changes to the river.
[78] In considering question 2, the applicant addresses the adjacent MP 79 which was granted just a year earlier, in 2005. It is a term of MP 79 that it must exclude the area covered by ML 56. It is said that, if ML 79 was to have fixed boundaries, then there would be overlaps with the boundaries of MP 34 which, on the applicant’s case, move with changes to the river. It is said that, accordingly, it cannot have been intended that either of the adjacent mining permits would have boundaries that are fixed.
[79] The respondents say that the answer to the second question is no, irrespective of the Court’s finding on question 1. They say that the boundaries of MP 34 were fixed at the date the permit was granted and that if for some reason they overlap with the MP 79 licence area, then that might raise a question about MP 79’s lawfulness. But the boundaries do not need to be regarded as moving boundaries to avoid this consequence. They say that MP 79 provides a set of rights that are separate and distinct from those arising from ML 56 or MP 34.
[80] Again, an analysis of the permit and the statutory and regulatory scheme lead to the conclusion that the respondents’ position should be preferred.
Permit description
[81] As described in [16], the permit area for MP 34 is described simply as the land that is “more particularly shown on the plan attached”. Ms McLaughlin described the boundaries of MP 34 as being “for the most part, defined by the cadastral boundaries of the Clutha River (and offset from those) and not as being defined by the physical location of the riverbanks (and offset from those)”.
[82] Andrew O’Loan, a principal adviser at MBIE, referred to there having been, in approximately mid-2005, a move away from describing permit areas in words to using the formulation “as is more particularly shown on the plan attached” and then using a plan or map which may not necessarily show precisely the same area as that sought in an application.
[83] The plan attached to MP 34 shows the mining permit area running alongside “cadastre 04/2006”. A cadastre means “all the cadastral survey data held by or for the Crown and Crown agencies”. A cadastral survey data set means “the set of cadastral survey data necessary to integrate a cadastral survey into the cadastre”. And a cadastral survey means “the determination and description of the spatial extent (including boundaries) of interests under the tenure system”.31
[84] The applicant says that, just as the cadastral boundaries of the river can move, the boundaries of MP 34 can move also. However, cadastral boundaries do not necessarily align with, and move with, the actual riverbank boundaries. In addition, I accept the respondents’ submission that, while fixed to the cadastral boundaries, the boundaries of MP 34 are not a cadastre themselves – they do not have a cadastral survey data set and have never been surveyed. Again, the permit description itself is not sufficient to answer the question.
The Crown Minerals Act 1991
[85] Unlike the 1971 Act, there is no express requirement in the 1991 Act for the boundaries of a permit area be “fixed”. The respondents says that, in the absence of
31 Cadastral Survey Act 2002, s 4 (definitions of “cadastre”, “cadastral survey district” and “cadastral survey”).
any indication in the legislative history that Parliament intended to change the approach to the fixing of mining right boundaries from that in the 1971 Act, much the same approach should apply and permit areas should continue to be regarded as being fixed. This approach, it is said, is consistent also with the purposes and scheme of the Act and with the 1999 Regulations.
[86] As mentioned in [31] and [32], while the 1991 Act did not have a purpose provision, it did describe the purpose of minerals programmes as being to provide for the “efficient allocation” of rights over Crown-owned minerals.32 And the minerals programme that was in operation at the time defined “efficient allocation” as being “distinct from the concept of efficient extraction of the resource”. The minerals programme went on to provide that efficient allocation requires the physical boundary of permits not to overlap with the boundaries of other permits or privileges.
[87] While not relevant in determining the questions before the Court, it is to be observed that a purpose provision was added to the 1991 Act in May 2013.33 Section 1A now provides that the purpose of the Act is to “promote prospecting for, exploration for, and mining of Crown owned minerals for the benefit of New Zealand” and goes on to say that, to this end, the Act provides, amongst other things, for “the efficient allocation of rights to mine Crown owned minerals” and for the “effective management and regulation of the exercise of those rights”.
[88] The scheme of the 1991 Act supports the view that permit boundaries cannot be ambulatory. First, the Act discourages overlapping permit areas by providing that no permit may overlap with another without the consent of the original permit holder.34 And, as with the 1971 Act, mining rights under the 1991 Act are exclusive.35
32 Crown Minerals Act, s 12.
33 Inserted by s 6 of the Crown Minerals Amendment Act.
34 Section 119 (as at 3 September 2007) – and now s 25(7).
35 Section 30.
[89] Finally, as with the 1971 Act, the 1991 Act requires consultation in the permit application process.36 In the event that the boundaries of the permit could change without further consultation, the relevant provisions could be undermined.
Crown Minerals (Minerals and Coals) Regulations 1999 and the Cadastral Survey Guidelines
[90] As mentioned in [37], the application form required by the 1999 Regulations required a permit plan to “clearly identify” the location of the proposed permit, to “define the permit application area with a bold black line”, and to “show enough detail to enable the area to be located on the ground and to fix its position”.37
[91] The Cadastral Survey Guidelines 2004, which were in place when MP 34 and MP 79 granted, are of relevance also. The guidelines were drafted to “facilitate nationally consistent interpretation and application of statutory, legal and departmental requirements”38 for surveying – including for mining permits.
[92] In prescribing requirements for the boundaries of mining permits, the guidelines provided, as relevant here:39
…
Boundaries offset from the centre or bank of a river are to be reduced to right lines and appropriately monumented when specified by LINZ.
Mean High Water Mark for cadastral purposes is a movable boundary. This is not acceptable for mining privileges, the boundary being “fixed” as at the date of issue of the permit. MHWM boundaries are to be reduced to right lines and marked or fixed by offset where specified by LINZ.
[93]As Ms McLaughlin explained:
Right-lining a boundary involves converting that boundary into a series of fixed, straight lines (or ‘right lines’) that are defined mathematically via bearings and distances. Right line boundaries are fixed and cannot move.
36 Under s 4, all persons exercising functions under the Act shall have regard to Te Tiriti o Waitangi. The 1996 Minerals Programme provided that this involved a commitment to consultation with Māori including in relation to applications for permits.
37 The current regulations are the Crown Minerals (Minerals Other than Petroleum) Regulations 2007 which no longer use the form prescribed in the 1999 regulations but which require a map of the permit area that “locates and defines the boundaries of the permit area” and “enables the boundaries of the permit area to be accurately located and relocated” – s 4 (definition of “map”).
38 Cadastral survey guidelines (v 5.1, August 2004) in foreword.
39 At [6.20.2.1] “MHWM” means high water mark.
[94] While, unlike the 1971 Act, the 1991 Act does not require, expressly, that boundaries of permit areas are to be fixed not to move, it is apparent, having regard to the terms of the Act, to the 1999 Regulations and to Cadastral Survey Guidelines that the position remains the same under the 1991 Act. Accordingly, the boundaries of MP 34 are fixed by reference to the plan attached to the permit document and do not move with changes to the Clutha River.
Accretion and erosion
[95] The respondents say that the applicant would, in order to make out his case, need to rely upon the common law doctrines of accretion and erosion which enable physical boundaries between land and water to change over time due to natural processes. However, it is said that the doctrines cannot apply to chattel interests in land such as mining licences and permits because chattel interests do not allow holders to have the full benefit of a parcel of land.40 It is said that, in any event, the doctrines cannot apply here because of the requirement in s 76 of the 1971 Act and the equivalent requirements in the scheme of the 1991 Act, for mining permit boundaries to be fixed.
[96] The applicant does not in fact rely upon the doctrines of accretion or erosion but, for completeness, I agree with the submissions that the doctrines have no application to the regimes for mining licences or permits.
Interaction with MP 79
[97] The applicant says that, if the Court’s answer to question 1 is yes and if its answer to question 2 is no, then an overlap with MP 79 would arise in contravention of the exclusivity provisions in the 1971 and 1991 Acts. The argument appears to be that MP 79 must have moved with the riverbanks in the same way as ML 56 moved with the riverbanks such that, if MP 34 was fixed, it would overlap with MP 79 and an overlap of that type is not permitted.
40 Tainui Māori Trust Board v Attorney-General [1989] 2 NZLR 513 (CA) at 520–523 and 531–534.
[98] The point does not arise given my answers to the questions. Nevertheless, I do agree with the respondents that, even if ML 56 did have a movable boundary, the question becomes whether MP 79 was granted lawfully at the time. That is not an issue that is before the Court.
Answers to the preliminary questions
[99]For the reasons given:
(a)The answer to question 1 is “no”.
(b)The answer to question 2 is “no”.
[100] The question of costs was not addressed in the submissions for any of the parties and it may be that, as only preliminary questions are being considered, the parties would prefer it if costs were reserved pending the outcome of the substantive proceeding. But, in the event that costs are sought, memoranda may be filed by the respondents within five working days from the date of this decision and a memorandum may be filed by the applicant within a further five working day period. Any such memoranda (including schedules) should not exceed five pages in length.
Radich J
Solicitors:
Webb Farry Lawyers, Dunedin for Applicant
Crown Law, Wellington for First, Second and Third Respondents Anderson Lloyd, Dunedin for Fourth Respondent
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