Complaint under Ombudsman Act about Carter's softdoc Pike River Coal Company access decision

The Office of the Ombudsman
Attention: Mr Mel Smith and Mr Tony Ilott

24 September 2004

Dear Mr Smith and Mr Ilott,

New complaint under s 13 Ombudsman Act 1975 concerning the Minister of Conservation's approval of access arrangement to Pike River Coal Co Ltd

1. I have replied to your letter of 2 September 2004 in respect of the Official Information Act (OIA).

2. I request that you investigate, in terms of s 13 of the Ombudsman Act 1975 (OA), the Minister of Conservation's decision of 12 March 2004 to enter into a conditional agreement for land access with Pike River Coal Company Limited (PRCC).

3. I allege that this decision was:

a. contrary to law [ s 22(1)(a) of the OA];
b. unreasonable [s 22(1)(b) of the OA];
c. based wholly or partly on a mistake of law [s 22(1)(c) of the OA];
d. was made without giving reasons when they should have been given for the decision [s 22(2) of the OA].

4. I allege that the Minister's decision was contrary to law, unreasonable in the Wednesbury sense, based on an error or mistake of law and that the Minister did not provide sufficient reasons.

5. The Minister failed to properly direct himself in law (an error of law), he failed to weight the mandatory relevant matters and he did not exercise his discretion in a real way.

Summary of Facts

6. The legislation conferring the discretion on the Minister of Conservation in respect of Crown land held for conservation is the Crown Minerals Act 1991 (CMA). In respect of Crown land it allows for holders of mining permits to apply to the relevant Minister of the Crown for access arrangements.

7. Section 61(2) of the CMA section states:

"In considering whether to agree to an access arrangement in respect of Crown land, the appropriate Minister shall have regard to:
a) The objectives of any Act under which the land is administered; and
b) Any purpose for which the land is held by the Crown; and
c) Any policy statements or management plan of the Crown in relation to the land; and
d) The safeguards against any potential adverse effects of carrying out the proposed programme of work; and
e) Such other matters as the appropriate Minister considers relevant."

8. In 1998 PRCC applied for an access arrangement under s 59 CMA. In October 2000 a revised application was made and in February 2001 an addendum was added. On 18 June 2002 the Department of Conservation (DOC) sent a draft report to PRCC for comment. DOC completed its final draft report, the 'Conservancy Mining Report' (CMR) or Appendix AA on 10 December 2003 and PRCC provided comment on 15 December 2003.

9. There is no requirement within the CMA (such as s 17S(5) of the Conservation Act 1987) that an applicant shall be given the opportunity to provide comment on draft reports before the Minister's decision. I assume this was done to provide for natural justice and to provide advance warning of a possibly adverse outcome.

10. The CMR is a substantive report at 94 pages or 360 paragraphs long, not including the 31 appendices, that fully describes the matters considered by departmental officials.

11. The CMR provides advice on the discretion to be exercised by the Ministers at several points. For example, the Minister shall have regard to the principles of the Treaty of Waitangi (paragraph 237). In terms of s 61(2) CMA the CMR notes at paragraph 240 what matters would be irrelevant considerations for the Minister (although the term 'Department' is used);

"The relevant considerations detailed above are not those of local communities, regional or district councils, or other interests of the Crown. The Department's interests relate solely to the statutory administration of the land and can not relate to the profitability of the venture or its likely economic or strategic importance. The Department is not, however, required to facilitate prospecting, exploration, mining and mining operations as was the case under the previous legislation."

12. Under the CMA, the Minister, in deciding on an access arrangement, is expressly required to apply the purposes and objectives of the Conservation Act 1987, not those of the CMA (Grinlinton, D. 2001 "Access for mining on the conservation estate - the Reefton debate", BRMB 4:61-63.). The Minister's decision can no longer be challenged for failure to consider the purpose of facilitating mining, as was the case under the Mining Act 1971 regime prior to 1991 (refer Spectrum Resources Ltd vs Minister of Conservation [1989] 3 NZLR 351.).

13. The CMR includes a quote from a Court of Appeal case on the requirement to weigh up conflicting matters to reach a decision (page 64 paragraph 287).

'As the Court of Appeal observed in Keam v Minister of Works and Development [1982] 1 NZLR 319, in the context of s 20(6) of the Soil and Water Conservation Act 1967, which required water boards to have "due regard to … the safeguarding of scenic and natural features…": "In this and in any case in which there are factors adverse to the grant of a right there is no way of deciding whether a right should be granted except by weighing the benefit or advantage of one course against the relevant detriment which may arise from the other."'(my emphasis)

14. Under the heading 'Other Matters Considered Relevant' the CMR indicates that compensation is a relevant matter: "It is open for the Minister to have regard to compensation in considering the access arrangement application from PRCC." (paragraph 318). Paragraph 335 indicates compensation is a relevant matter and that "the Minister will need to determine what weight, if any, to attach to it". These paragraphs provide no further discussion of why compensation is a relevant matter.

15. The CMR concludes at page 88 paragraph 360 that "PRCC's application is inconsistent with the matters covered by s 61(2)(a), (b) and (c)..." (statutory objectives, land-holding purposes and management plans).

16. For s 61(2)(d), 'safeguards from adverse effects', the CMR concludes "we are particularly concerned about losses to the following natural resources" (flora, remoteness, water quality, aquatic habitat, threatened native species habitat and the sandstone escarpment) from the following adverse effects (acid mine drainage, subsidence, discharges, and slow rehabilitation).

17. In respect of s 61(2)(e), 'other matters', the CMR considers the compensation offer to be "generally appropriate" and the amount ($1.5 million) "appears to be adequate".

18. The CMR does not conclude with a single recommendation to the Minister based on a discussion of the five 'relevant' matters. It finishes as follows on page 90:

The key issue for the Minister to decide is whether the proposed partial safeguards and the compensation package offered by PRCC, are sufficient to outweigh the Department's concerns about the matters covered by section 61(2)(a), (b) and (c), that is, the objectives of the Conservation and National Parks Acts, the purposes for which the land is held and the relevant management plans."

19. Therefore the authors of the CMR were clearly of the view that they had not weighted the s 61(2) CMA matters and that this was a matter for the Minister personally. Given the past conflicts on the West Coast about extractive industries and natural resources being "locked up" under Departmental management it is not surprising that the West Coast conservancy officials wished the Minister to personally make the decision.

20. On 15 December 2003 PRCC provided a 18-page response to the CMR and an annotated copy of the CMR as its response. With respect to PRCC, many of their comments appear to be outside the parameters of s 61(2) CMA:

a. The CMR relies on experts whose evidence was not accepted in consenting processes under Resource Management Act 1991 (RMA) paragraph 12 and 70
b. The express recognition in the Paparoa National Park Management Plan of the Pike River Coalfield had not been recognised (paragraph 16). (NB Such a provision would be contrary to s 4 of the National Parks Act 1980).
c. PRCC have obtained resource consents for mining activities (paragraph 18 and 70)
d. There is no essential difference between the consideration under s 61(2)(a) and that which is taken under the RMA (paragraph 43).

21. The Minister of Conservation has provided the formal record of his decision taken under the Crown Minerals Act 1991 - the report titled "Pike River Access Arrangement" . This concise 17-page document includes both the 'Conservancy Mining Report' as Appendix AA and PRCC's response to it.

22. The first sentence 'Pike River Access Arrangement' is: "We seek your consideration of the Pike River Coal Mining Company Limited access arrangement application in accordance with s 61(2) of the Crown Minerals Act 1991"

23. This report concludes, almost exactly in the same way as the CMR of 10 December 2003, that the "application is inconsistent with the matters covered by s 61(2)(a), (b) and (c)..." (on page 14 paragraph 66).

24. For s 61(2)(d) the report notes "we are particularly concerned about losses to the following natural resources" (flora, remoteness, water quality, aquatic habitat, wildlife habitat and the sandstone escarpment, pages 14 - 15).

25. In respect of s 61(2)(e), 'other matters', the report considers compensation and also consultation, which was not in the CMR. The compensation offer is considered "generally appropriate" and the amount ($1.5 million) "appears to be adequate". However, the West Coast Tai Poutini Conservation Board "is opposed in principle to the mine and believes its development is not in the best interests of conservation, and does not foster or promote conservation". The New Zealand Conservation Authority "considers that the proposal from the PRCC is not consistent with the purposes for which the land is held" (page 15). There is no overall conclusion for 'other matters'.

26. The report does not conclude with a single recommendation to the Minister based on a discussion and weighting of the five 'relevant' matters. It finishes as follows:

"The key issue for you to decide is whether the proposed partial safeguards and the compensation package offered, are sufficient to outweigh our concerns about the matters covered by section 61(2)(a), (b) and (c), that is, the acts under which the land is held, the purpose for which the land is held and the relevant management plans."

27. The final page is headed "Recommendations and the Minister's Decision". The Minister has marked with his pen from five 'yes/no decisions'; that he has noted the submission, the appendices, PRCC's comments, he has agreed there is enough information, and that he has approved the arrangement, rather than decline or defer it. The Minister has signed and dated the page as has the Acting General-Manager (Southern Region) of the Department of Conservation.

28. On 12 March 2004 the Minister issued a press statement that included this comment:

"Taking into account the criteria laid down in the Crown Minerals Act, I have concluded that the partial safeguards and compensation deal offered by the company are sufficient to outweigh the inconsistencies between the application and objectives of the Conservation Act under which these lands are held, the various purposes for which these lands are held and the relevant management plans that apply."

29. As you are aware on 14 March 2004 I requested a copy of the record of the Minister's decision that gave his reasons. On 12 May 2004 I made a further request for the Minister's reasons for the weighting of the matters considered. On 19 May 2004 the Minister replied stating:

"I can advise that I decided that the section 61(2)(d) and (e) matters of the Crown Minerals Act 1991 outweighed the section 61(2)(a), (b) and (c) matters. My decision was based on the information set out in the departmental submission and from a site visit. No arithmetical weighting was given to the matters to be considered under section 61(2); rather my decision was based on the totality of the evidence before me. The details of the proposed partial safeguards and the compensation are set out in the departmental submission."
The Minister's responsibility to exercise a statutory discretion lawfully

30. Principles of administrative law that apply to statutory decision-makers such as the Minister of Conservation were described in 'Wednesbury' (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223) as follows:

a. "The courts can only interfere with an act of an executive if it be shown that the authority have contravened the law"
b. "...the court...must not substitute itself for the local authority"
c. "The law recognises certain principles on which the discretion must be exercised, but within the four corners of those principles the discretion is an absolute one and cannot be questioned in any court of law."
d. "The exercise of discretion must be a real exercise of discretion. If in the statute conferring the discretion, there is to be found, expressly or by implication, matters to which the authority exercising the authority ought to have regard, then, in exercising the discretion, they must have regard to those matters. "
e. "...a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably". "

31. The application of the Wednesbury principles of administrative law and judicial review in New Zealand was summarised by Blanchard J in Quarantine Waste NZ Ltd v Waste Resources Ltd:[1994] NZRMA 529, 540 as follows:

"Upon an application for judicial review the Court does not substitute its own decision for that of the consent authority, it merely determines whether proper procedures were followed, whether all relevant and no irrelevant considerations were taken into account and whether a decision was reasonably made. Unless the statute otherwise directs, the weight to be given to particular relevant matters is one for the consent authority not for the Court to determine."

32. As Wild J noted in Waikato Regional Airport Ltd vs Attorney-General:

"The New Zealand cases regard the weight to be given to competing relevant considerations as generally a matter for the decision-maker: Behari v. Minister of Immigration [1990] 3 NZLR 558 (CA) at p 562; New Zealand Fishing Industry Association Inc v. Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at p 568; and Valuer-General v. Wellington Rugby Football Union Inc [1982] 1 NZLR 678 (CA)."

33. There must also be material of sufficient probative value to support the decision maker's consideration and weighting of the relevant mandatory matters (Pring v Wanganui District Council 1999 NZRMA 519).

34. The Cabinet Manual (http://www.dpmc.govt.nz/cabinet/manual/) provides these guidelines for Ministers of the Crown in respect of statutory powers that may be subject to judicial review.

2.112 "However, where the final decision is required to be made by the Minister him or herself, the court will look to the Minister as the person who is ultimately responsible for ensuring that the decision is made reasonably, fairly and according to law."
2.113 "If a Minister is acting under statutory authority, the Minister must be seen from the record as personally having taken a decision."

35. The Crown Law Office has provided the following advice for Crown departments on administrative law (Crown Law Office, 1991. The judge over your shoulder: judicial review of administrative decisions.).

a. "The basic question in judicial review is: 'Has the decision-maker acted within the scope of the power or discretion conferred, reasonably and fairly?'" (paragraph 7).
b. "it is strongly recommended that you carefully formulate your reasons in your recommendation as those reasons will be critical to the outcome of any judicial review" (paragraph 30).
c. "It is vital that the papers reflect all the relevant considerations taken into account and the reason for the decision…If the ultimate decision-maker does not accept in entirety the recommendation or the reasons set out, that difference should be briefly recorded, either on the recommendation itself or in a letter of advice to the affected party."
(paragraph 34).

Application of administrative law to the Pike River access arrangement decision.

36. In the Pike River decision the statutory relevant matters are the five matters from s 61(2) CMA noted above. These are the matters the Minister must call his attention to and he must direct himself properly in law in considering them (see 30.e. above). The matters are joined by the word "and" so the starting point for their consideration, in absence of reasons given by the decision-maker to do otherwise, would be equal weighting.

37. In two detailed and substantive reports DOC has concluded that of the five matters, three [s 61(2)(a), (b) & (c)] do not support the grant of an access arrangement. With respect to the fourth matter, s 61(2)(d), they remain concerned about potential adverse effects that in their opinion have not been adequately safeguarded against. For the fifth matter, 'other relevant matters' they are equivocal: the compensation appears reasonable but the two statutory conservation bodies are opposed. Of five matters only part of one matter is a consideration in favour of granting the access arrangement. DOC has explicitly not weighted these matters but has stated that it is for the Minister to consider and weigh them.

38. The Crown Law Office advice would be that it is vital that all relevant considerations and reasons be documented and if the Minister, exercising the discretion, decides on a different decision and different reasons from the official's report, then these must be recorded (see 35 above).

39. The consideration and weighting of the relevant mandatory matters must also be supported by material of sufficient probative value (see 33 above).

40. The Minister made his choice by crossing out the word 'no' and leaving the word 'yes' next to the option "approve the access arrangement" on page 16 of the report 'Pike River Access Arrangement'. The Minister has, in effect, ticked the box next to the option most inconsistent with the thrust of the two very detailed reports provided to him by DOC. The Minister gives no reasons for his choice and consequently there is no material of probative value to support his choice.

41. This is in marked contrast to the Minister's predecessor when she declined the GRD Macraes mine access application near Reefton in 2001. She was "clearly aware of the need to make her decision immune to judicial review" and she "released a closely textured set of reasons for declining" (Grinlinton, D. 2001 "Access for mining on the conservation estate - the Reefton debate", BRMB 4:61-63.) that followed to the letter the s 61(2) criteria.

42. I contend that the Minister's action is an "illegality" and an error in law. The Minister has not correctly directed himself in law and he has not exercised his discretion in a real sense (see 30e.). It was for the Minister to decide on the weight to be given to the relevant matters and DOC made that explicit to him by not recommending any weighting of the relevant matters. The DOC CMR and the final report 'Pike River Access Arrangement' both conclude by setting out the decision or weighing that has to be made by the Minister (see 18 & 26 above).

43. The Cabinet Manual paragraph 2.113 makes it clear that the Minister must be seen from the record as personally having taken a decision. Paragraph 2.112 makes it clear it is the Minister who is responsible for ensuring the decision is lawfully made. The Minister has failed to meet this obligation.

44. In his press statement of 12 March 2004 the Minister states he has concluded that partial safeguards and compensation outweigh the inconsistency with conservation objectives (see 28 above). In his letter to me of 19 May 2004 he confirms he decided the s 61(2)(d) and (e) matters of the Crown Minerals Act 1991 outweighed the s 61(2)(a), (b) and (c) matters (see 29 above).

45. This statement, as well as his later statement that his decision was based on the totality of the evidence, is a non sequitur. The Minister has not given a weighting I disagree with; he has given no weighting to the s 61(2) matters what so ever. This is a failure to have regard to and give genuine thought and attention to the relevant matters. It is an illegality, an error in law and a failure to validly exercise the discretion conferred on the Minister by the CMA. It is therefore unreasonable.

The consideration of the irrelevant matter of compensation

46. I submit that the proposed compensation to be paid by PRCC is not a relevant matter for the Minister to consider under s 61(2)(e) of the CMA in considering whether to agree to an access arrangement.

47. As noted, the Minister must exclude irrelevant considerations following established rules of administrative law (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223).

"...a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably". "

48. The statute conferring the discretion will set out mandatory considerations and there may also be permissible considerations that will arise by implication or from the scheme of the statute (Joseph, P. A. 2001. Constitutional and Administrative Law in New Zealand. 2nd Ed. Brookers Ltd, Wellington, pages 793-5.). "The more comprehensive and detailed the criteria, the more likely they will be construed as exhaustive." (Joseph, 2001. op. cit p 794.)

49. The relevance of considerations is described by Cooke P in New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544, 552 (CA) where he states:

"I accept that the relevant considerations which the Minister was bound to take into account included such facts obviously material to the mandatory statutory considerations as were or ought to have been known to himself or the Ministry. That is to say, the duty to consider statutory criteria extends to facts so plainly relevant to those criteria that Parliament would have intended them to be taken into account and a reasonable Minister would not fail to do so. See CREEDNZ Inc v Governor General [1981] 1 NZLR 172, 183; Ashby v Minister of Immigration [1981] 1 NZLR 222, 225-226."

50. Therefore to establish the relevance or otherwise of compensation to the Minister's decision it is necessary look at the interpretation, wording, scheme, purposes of the CMA and to attempt to discern the intention of Parliament.

51. The long title of the CMA is "An Act to restate and reform the law relating to the management of Crown owned minerals". In broad terms the "CMA establishes a permitting regime under which Crown minerals can be extracted for commercial purposes. The Act also regulates access to land upon which minerals are located." (S Christensen, "The law and mining", Chapter 10, Handbook of Environmental Law, Ed. Harris R, Royal Forest and Bird Protection Society Inc, Wellington, 2004).

52. In respect of access to land the CMA defines two types of landowners: Ministers of the Crown in respect of crown owned land and private landowners.

"Owner means- (a) In relation to Crown land, the appropriate Minister within the meaning of subsection (2); and (b) In relation to land other than Crown land, the person or persons who hold the fee simple title to the land [; and includes, except for the purposes of sections 8 and 49 to 52, the person or persons (other than the Crown) who owns or own the minerals in the land:"

53. Both types of owners may enter into 'access arrangements' with persons for "carrying out mineral-related activities". Access arrangements are defined as:

"Access arrangement and arrangement means an arrangement between a person desiring access to land for the purpose of carrying out mineral-related activities and the owner and occupier of the land, permitting such access, either entered into by way of agreement or determined by an arbitrator in accordance with this Act:"

54. An important difference between access to private land and the conservation estate is that private landowners may be required to enter into access arrangements by compulsory arbitration under s 66. However, under s 55(2)(a), compulsory arbitration is not available for access to Crown land held under the Conservation Act 1987 or any other Act specified in Schedule 1 of that act. Except for judicial review, the Minister of Conservation's decision on access to the conservation estate is final.

55. Those seeking an access arrangement must serve notice in writing on an owner (whether private or Crown) under s 59(1) and that notice shall specify compensation under s 59(2)(d).

59.Notice of request for grant of right of access-
(1) Every person wishing to obtain an access arrangement in order to prospect, explore, or mine on or in land shall serve on each owner and occupier of the relevant land a notice in writing of that person's intention to obtain an access arrangement.
(2) Every notice under subsection (1) shall, in addition to matters required by regulations, specify- (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.

56. The matters that may (my emphasis) be included in an access arrangement are listed in s 60 and these include compensation (s 60(1)(f)).

60.Grant of right of access by access arrangement-
(1) An access arrangement in relation to land may make provision for or with respect to the following matters:
(a) The periods during which the permit holder is to be permitted access to the land:
(b) The parts of the land on or in which the permit holder may explore, prospect, or mine and the means by which the permit holder may gain access to those parts of the land:
(c) The kinds of prospecting, exploration, or mining operations that may be carried out on or in the land:
(d) The conditions to be observed by the permit holder in prospecting, exploring, or mining on or in the land:
(e) The things which the permit holder needs to do in order to protect the environment while having access to the land and prospecting, exploring, or mining on or in the land:
(f) The compensation to be paid to any owner or occupier of the land as a consequence of the permit holder prospecting, exploring, or mining on or in the land:
(g) The manner of resolving any dispute arising in connection with the arrangement:
(h) The manner of varying the arrangement:
(i) Such other matters as the parties to the arrangement may agree to include in the arrangement.
(2) In considering whether to agree to an access arrangement, an owner or occupier of land (other than Crown land) may have regard to such matters as he or she considers relevant.

57. Section 60(2) provides that private landowners may have regard to any matters considered relevant, including therefore the compensation to be paid (s 60(1)(f)), in considering to agree to an access arrangement. However, the effect of the words "other than Crown land" in s 60(2), is to exclude owners of Crown land.

58. The positioning of s 60(2), immediately following the s 60(1) list of matters that may be included in an access arrangement, indicates that private landowners may have regard to such matters as they consider relevant in considering to agree to an access arrangement. However, Ministers, as owners of Crown land, are limited from that provision enabling broad inclusion of relevant matters as they are specifically excluded from that provision.

59. The relevant matters for the appropriate Minister to consider in deciding whether to agree to an access arrangement for Crown land are specified in s 61. 'Access arrangements in respect of Crown land'. The use of the words "may" and "whether to agree" specify that the Minister has the discretion to either approve or to decline an application, as did the Minister's predecessor in respect of the GRD Macraes mine access application near Reefton in north Westland in 2001.

S 61 (1) The appropriate Minister may, by agreement, enter into an access arrangement in respect of Crown land. [(1A)…
(2) In considering whether to agree to an access arrangement in respect of Crown land, the appropriate Minister shall have regard to-
(a) The objectives of any Act under which the land is administered; and
(b) Any purpose for which the land is held by the Crown; and
(c) Any policy statement or management plan of the Crown in relation to the land; and
(d) The safeguards against any potential adverse effects of carrying out the proposed programme of work; and
(e) Such other matters as the appropriate Minister considers relevant.

60. The effect of the statutory construction of s 60(2) and s 61(2) is that private landowners are virtually unrestricted in what they can have regard to in agreeing to an access agreement. It is simply to be an exchange of private rights. However the bracketed term "(other than Crown land)" in s 60(2) specifically and deliberately excludes owners of Crown land (Ministers) from having that broad discretion.

61. The matters Ministers of Crown land shall have regard to, in considering to agree to an access arrangement, are specifically stated in s 61(2). These are the mandatory considerations. Compensation is not specifically mentioned. Given the 'comprehensive' and fairly 'exhaustive' detail specified, the s 61(2) should be construed narrowly. If Parliament had intended compensation to be considered by the Minister, then it would have been specifically listed in s 61(2). It is not.

62. The Minister has considered compensation to be a relevant matter under s 61(2)(e). Is it therefore a permissible consideration within the statutory scheme and objectives of the CMA? On the basis of the previous paragraph, that does not appear to be the intention of Parliament. There are also two further reasons for considering that compensation is not a valid permissible consideration under the s 61(2)(e) heading of 'other relevant matters'.

63. The first is the rule of ejusdem generis. If a list of specific items is followed by a general word, it is assumed that if the specifics are all examples of a class, then the general word is likewise confined to that class (R v Gold [1987] QB 1116, affd [1988] AC 1063). General words following particular words will be interpreted in the light of the particular ones (Powell v Kempton Park Racecourse [1899] AC 143).

64. In other words, the specific or particular matters in s 61(2) are the relevant statutory objectives, land holding purposes, policies and management plans and safeguards against adverse effects. The 'other relevant matters' of s 61(2)(e) must be of the same class and be interpreted in light of the particular matters. Compensation, especially in the situation where the Minister considers it determinative of his decision to agree to access, is not of the same class as the particular s 61(2) matters.

65. Other permissible considerations must also be consistent with the statutory purposes if specified. As Lord Reid stated in Padfield and Others v Minister of Agriculture Fisheries and Food and Others [1968] 1 All ER 694:

"Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole, and construction is always a matter of law for the court."

66. In the CMA, the policy and objects for the Minister to direct himself to are specifically conservation policy and objects as set in s 61(2)(a), (b) and (c). The Minister's decision can not be challenged for failure to consider the purpose of facilitating mining, as was the case under the Mining Act 1971, prior to the enactment of the CMA in 1991.

67. Consultation with the West Coast Tai Poutini Conservation Board and the New Zealand Conservation are clearly 'of the same class' as the particular specified matters. These two statutory bodies represent regional and national conservation interests to the Minister and Department in respect of management plans and policies.

68. Secondly, in terms of the statutory scheme of the CMA, compensation is fully provided for in a later section of the CMA - in s 76, which sets out a detailed code for compensation applying to both Crown and private land.

76.Compensation for owners and occupiers-
(1) Where a person is authorised to prospect, explore, or mine on or in land by a permit granted under this Act and by an access arrangement in respect of that land, the owner and occupier of the land are entitled to compensation from the permit holder for injurious affection and all other loss or damage suffered, or likely to be suffered, by them as a result of the grant of the permit or the exercise of the rights conferred by this Act, or by the permit, or by an access arrangement; and such compensation shall include all of the following:
(a) Reimbursement of all reasonable costs and expenses incurred by the owner or occupier in respect of negotiations with the permit holder and all reasonable legal and valuation fees in respect of the determination of an access arrangement:
(b) Reimbursement for loss of income:
(c) A sum by way of solatium for loss of privacy and amenities:
(d) Reimbursement of all reasonable costs incurred in ensuring compliance with, and monitoring of, the access arrangement.
(2) In assessing the amount of compensation to which an owner or occupier is entitled under subsection (1), an arbitrator shall assess it in accordance with the provisions of the Public Works Act 1981, as if the commencement of activities on land under a permit were the taking of land within the meaning of that Act, except that
(a) Where any land damaged is flat land the use of which is necessary for the proper working of hill land, the extent to which the value of the hill land is affected shall, in addition, be taken into account; and
(b) Where an Order in Council has been made under section 66 declaring that an arbitrator may determine an access arrangement, once the amount has been assessed in accordance with that Act and this section, the arbitrator shall also assess it in the light of any consideration agreed to be paid by the person desiring access, or any other person, to an owner or occupier in any comparable situation in respect of the same or a similar prospecting, exploration, or mining proposal, and shall then determine that the amount to be paid is to be the higher of the amounts so assessed.
(3) For the purposes of subsection (2)(b)-
(a) The owner and occupier and any other person may give such information to the arbitrator as they possess:
(b) The arbitrator may require the person desiring access to give such information to the arbitrator as the arbitrator determines regarding the consideration agreed to be paid by that person for an access arrangement entered into with any other owner and occupier in any comparable situation.
(4) Any information provided by a person to an arbitrator pursuant to subsection the arbitrator shall treat (3)(b) as confidential, and section 75 shall not apply in respect of any breach of such confidentiality by the arbitrator.
(5) If a person desiring access fails or refuses to give any information pursuant to subsection (3)(b) to the arbitrator's satisfaction, within such reasonable period as is specified by the arbitrator, the arbitrator shall refuse to determine an access arrangement.
(6) In considering the provision of compensation as part of an access arrangement, an arbitrator shall have regard to any monetary or non-monetary compensation offered to the owner or occupier by a person desiring access.
(7) Where an owner or occupier suffers loss, injury, or damage due to the activities of a permit holder or of a person authorised under section 49(1) carried out on the owner's or occupier's land, and the permit holder entered the land under the authority of an access arrangement or of section 49, the owner or occupier shall be entitled to and may claim full compensation against the permit holder or person authorised for all loss, injury, or damage suffered by him or her as a consequence of such activities to the extent that compensation for such activities has not already been provided for in an access arrangement.
(8) In default of agreement between the parties, compensation payable under subsection (7) shall be assessed and determined by an arbitrator appointed in the same manner as for the determination of an access arrangement; and the provisions of this Act relating to the determination of an access arrangement shall, with all necessary modifications, apply accordingly.
69. Christensen notes that under subsection (7) "The owner or occupier is entitled to full compensation against the [mining] permit holder". He cautions that "the provision will not assist an owner or occupier if the activity causing the loss or damage is already identified in the access arrangement and inadequate compensation is provided."(S Christensen, "The law and mining", Chapter 10, Handbook of Environmental Law, Ed. Harris R, Royal Forest and Bird Protection Society Inc, Wellington, 2004)

70. Why does the CMA provide for two apparently mutually exclusive mechanisms of compensation? i.e. negotiated under s 60 and absolute under s 76(7)? I suggest this is because the scheme of the CMA provides for similar processes for access to Crown land and private land but these differ crucially in key respects such as availability of arbitration and the relevant purposes and matters to consider in agreeing to access.

71. As noted in 15. the Minister and the Department of Conservation have provided no reasons why they have opted for negotiated compensation within the access arrangement instead of compensation under s 76(7). I submit that the CMA gives sufficient guidance in that compensation is excluded by s 60(2), it is not specifically listed in the matters the Minister shall have regard to in s 61(2) and the rule of ejusdem generis also excludes it. Compensation is therefore an extraneous matter.

72. If the Minister has the discretion to consider compensation a relevant matter, then, as noted in 66, this discretion should be used to promote the policy and objects of the Act conferring it. As noted in 13, these are conservation objectives and the Minister is not required to facilitate mining - it is an extraneous consideration. In this situation the Minister's weighting and consideration of compensation has determined the decision and this has facilitated mining.

73. The Minister has therefore considered in a materially determinative way an irrelevant matter under the scheme of the CMA and has committed an error of law and has incorrectly exercised his statutory discretion.

74. I consider that on the basis of this submission the Ombudsmen should find that the Minister has considered an irrelevant matter, has committed an error of law, has incorrectly exercised his statutory discretion and that the decision to conditionally grant the access arrangement should be cancelled under s 22(3)(c) of the Ombudsman Act 1975.

Yours faithfully

Simon Johnson

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