An appeal by Forest & Bird against a southern council allowing a mining company on its land has been lost with the environmental organisation said to have filed an "unnecessarily sweeping appeal focusing on what were inherently discretionary local authority decisions".
It is also up for costs from a hearing which took place a year ago.
Forest & Bird had taken the Southland District Council and New Brighton Collieries to the Appeal Court.
The council had decided in 2021 to allow New Brighton Collieries, a subsidiary of Bathurst Resources Ltd, access to a proposed mine, located next to State Highway 96 between Ohai and Nightcaps.
The land, which is used for commercial forestry, was owned by the council.
Forest & Bird had applied to the High Court seeking a review of the council’s decision to allow New Brighton Collieries Ltd exploration rights for coal and granting it access for mining purposes.
Forest and Bird’s argument was the decision to allow New Brighton access and exploration rights was unlawful and it sought an order quashing it.
But the High Court did not agree and Justice Robert Osborne said in its decision in March, 2023, the council was managing its commercial forest portfolio and had discretion to enter into an access arrangement with New Brighton Collieries.
The decision at the time was not about coal-mining expansion, Justice Osborne said.
Forest & Bird appealed the decision to the Appeal Court.
It said the council had erred in three very interrelated ways.
It had decided the access decision was "not" significant.
It had decided that consultation or seeking the views and preferences of persons likely to be affected by, or to have an interest in it was not required.
It had decided any need for consultation or public engagement could be addressed by the imposition of the downstream publicly notified resource consent conditions.
Forest & Bird also maintained the council’s decision was unreasonable and that, in light of the climate change context, the courts should apply a "heightened scrutiny" standard of review.
In the decision by Justices Sarah Katz, Jillian Mallon and Rebecca Ellis, the reality was a denial of access by the council did not mean access would not be granted.
While granting access may have opened the first "door", doing so does not mean that the subsequent necessary doors will also be open, or even tried. A mining permit may or may not be sought and it may or may not be granted, the court’s decision said.
The court said "views and preferences of persons likely to be affected by, or to have an interest in, the matter" were adequately met.
It had not been, and could not be, suggested that the advice given to the council that "staff anticipate the community holding a wide range of views on this topic so there is a high risk that any engagement exercise would be inconclusive" was wrong.
The Appeal Court said its application for review — like its appeal — was unnecessarily sweeping and focused on what were inherently discretionary local authority decisions.
Forest & Bird said yesterday it was disappointed by the Court of Appeal’s decision.
