What about land access?
The granting of a permit under the Crown Minerals Act 1991 does not give the permit holder an automatic right of access to any land. Prior to commencing prospecting, exploration or mining activities (other than minimum impact activities on some land) a permit holder must reach and appropriate land access arrangement with the landowner and/or occupier. Sections 49 to 80 of the Crown Minerals Act 1991 set out the land access rules. There are different requirements depending on the type of land involved and whether or not the proposed activities are minimum impact activities.
An access arrangement may not be necessary for minimum impact activity. A minimum impact activity is defined in section 2 of the Act. It includes sampling and surveying by hand-held means, aerial surveying and any activities that do not result in other than minimum scale impacts.
For minimum impact activities on essentially only rural land, a permit holder is not required to obtain formal landowner and occupier consent to a land access arrangement. Instead, the permit holder is required to give 10 working days notice of entry in the appropriate manner.
However there is special protection for certain classes of land. No person can enter land less than 4.05 hectares in size (which covers general urban/residential land), conservation land, crop land, gardens, orchards, or cemeteries to carry out a minimum impact activity without the consent of the owner and/or occupier of the land.
For other than minimum impact activities, for example those that include cutting and removing vegetation, use of explosives, or significant earth works etc., the holder of a permit can only prospect, explore or mine in or on land to which the permit relates in accordance with an access arrangement with every landowner and occupier.
If an access arrangement cannot be reached, the permit holder may ask the landowner or occupier to agree to an arbitrator, but the landowner or occupier is not obliged to do this. In very rare cases the Governor General may declare, under section 66 of the Act, by Order in Council, that an arbitrator determine an access arrangement between the permit holder and the owner or occupier on the grounds of the public interest. Such an Order cannot be made over special categories of land including Maori land, conservation land, crop land, gardens, orchards, cemeteries and any land 4.05 hectares or less in size. No such Order has ever been granted to date.
As noted, the land access provisions provide special protection to Māori land as defined by Te Ture Whenua Māori Act 1993.
For minimum impact activities, before entering onto Māori land, in addition to providing 10 working days notice, a permit holder must ensure that reasonable efforts have been made to consult with the owners of the land as identified by the registrar of the Māori Land Court and 10 days notice must be given to the local iwi authority. If the Māori land is regarded as waahi tapu by the tangata whenua, access even for minimum impact activities can only be obtained if the Māori landowners give their consent.
For activities other than minimum impact activities, the owners of Māori land also have an absolute veto right on all mining activities on their land. There is an exemption for Māori land from access arrangements being determined by an arbitrator where there might otherwise be public interest grounds to support an access arrangement being negotiated.
In a similar way to privately owned land and Māori land, an access arrangement is required to enter Crown land. Consent to access has to be given by the Minister responsible for administering the land.
Section 61(2) of the Crown Minerals Act 1991 sets out the matters that the appropriate Minister must consider in deciding whether to agree to an access arrangement in respect of Crown land that they administer, including:
- the objectives of any Act under which the land is administered
- any purpose for which the land is held by the Crown
- any policy statement or management plan of the Crown in relation to the land
- the safeguards against any potential or adverse effects of carrying out the proposed programme of work
- such other matters as the appropriate Minister considers relevant.
In 1997, an amendment was made to section 61 to provide special protection for particular types of land administered by the Department of Conservation. The effect of the amendment is to prevent the Minister of Conservation from entering into access arrangements for mining except in very limited circumstances in: national parks; wilderness areas; nature reserves; marine reserves; scientific reserves; wildlife sanctuaries; forest sanctuaries; Ramsar sites (wetlands of international importance); offshore islands in the Hauraki Gulf administered by the Department of Conservation; ecological areas in the Coromandel Forest Park; conservation land on the Coromandel Peninsula north of State Highway 25A; and internal waters of the Coromandel Peninsula; where those lands or ares were so held, managed, administered, classified, declared, notified or gazetteered at the date of the commencement of the Crown Minerals Act 1991 (i.e 1 October 1991). A complete list of these areas is provided in Schedule four of the Act.
In some very limited circumstances, access arrangements may be granted in these specified areas but only to:
- enable the construction, use, maintenance or rehabilitation of an emergency exit or service shaft for an underground mine
- enable any mining operation that does not result in stripping of vegetation over an area exceeding 16 square meters or any permanent adverse impact on the profile or surface of the land
- allow a minimum impact activity
- allow gold fossicking
- allow demonstration of historic mining methods.
Under section 61(4) there is a procedure by way of Order in Council that on the joint recommendation of the Ministers of Energy and Conservation areas of conservation land may either be added or removed from schedule four in the future should this be warranted. Prior to such amendment being agreed to the Ministers must ensure that consultation takes place with those persons likely to be substantially affected.
The amendment does not provide this extra protection to ecological areas from mining as a generic category but provides that these areas should be assessed on a case by case basis given the diverse nature of the land in these categories. Section 61(1A)(6) states that no Order in Council can be made in respect of land deemed an ecological area under section 18(1) of the Conservation Act 1987 unless the Ministers of Energy and Conservation make a recommendation after making an assessment of the scientific value for which the land is held and the value of any Crown-owned minerals in the land.
An important aspect of any granted mineral prospecting, exploration or mining permit is the interaction between the permit holder and the landowner.
The Crown Minerals Act 1991 requires the consent of the land owner to be obtained before any work other than “minimum impact activities” is undertaken. Examples of these activities include geological mapping, geochemical sampling by hand and geophysical surveying. Consent needs to be obtained for work that has significant impact, such as drilling and mechanical excavation, and for any entry on to occupied and developed areas.
The circumstances are however different for land administered by the Department of Conservation (DoC). DoC administers approximately 30% of New Zealand’s land area, with a high proportion of this land being coincident with prospective mineral hosting geology. Any individual, group of individuals or company wishing to prospect or explore DoC administered lands will require an access arrangement to be granted by the Minister of Conservation, before embarking on a programme of investigative fieldwork, including “minimum impact activities”.
The details and requirements of these access arrangement applications can be obtained from any of the Regional Conservancy offices.