Lawyer rejects climate element in mine case
A lawyer for a coal company says Forest & Bird jumped the gun challenging an exploration and in-principle mining agreement.
But Forest & Bird’s lawyer argued that waiting until resource consenting meant it would not have been able to make substantive climate change submissions.
Mining company New Brighton Collieries Ltd has been granted exploratory access to the council’s Ohai forestry block, which is next to the Takitimu coal mine.
Forest & Bird is challenging the Southland District Council’s access agreement with New Brighton Collieries on the grounds the decision did not consider climate change.
A judicial review began in the High Court at Invercargill on Monday and New Brighton Collieries lawyer Richard Gordon resumed his submissions yesterday
The situation was the exact opposite of the Meat Loaf song Two Out of Three Ain’t Bad, Gordon said. A company needed all three parts of an access agreement to explore, access to mine and resource consent to mine.
‘‘Exploration is done, the [access] agreement has been spent. End of story really.’’
Nothing in the access agreement allowed coal mining to occur, Gordon said.
Perhaps the meatier argument was one of mootness or lack of utility, he said, going on to say no party came to court doubting the importance of climate change.
‘‘But what are we here for? It’s when you assess that question it’s when you see Forest & Bird have jumped the gun.’’
New Brighton Collieries had acted completely lawfully within the Crown Minerals Act, he said.
The case was fundamentally about the act and not climate change.
‘‘One should not be pursuing judicial review for something that is of no larger or practical utility,’’ he said.
This was not a coal mining decision, but an access decision ‘‘and by assuming coal mining will occur you’ve leapt from A to Z’’, Gordon said.
The judicial review should be dismissed, he said.
Conversion rates of exploration to mining were low, Gordon said.
On Monday, Forest & Bird said it wanted New Brighton Collieries’ access quashed and a declaration that the council’s decision to give it access to its Ohai forestry block was unlawful.
The council rejected Forest & Bird’s assertions in court on Monday.
The council is first respondent and New Brighton Collieries second.
Forest & Bird had contended that by having councillors vote on the access agreement in a public-excluded meeting, the council had breached the Local Government Act by not considering the public’s view.
However, Gordon said anyone who wanted to be heard would be during resource consenting, should the company apply.
In response, Forest & Bird’s lawyer, Adam McDonald, said the organisation brought the judicial review application after the council made its decision, and if it had waited it would have been criticised for sitting on its hands.
Waiting until resource consenting meant it would not have been able to make substantive climate change submissions, McDonald said.
Affidavits from two Forest & Bird youth leaders and affidavits from sustainable energy and earth sciences professors were filed by Forest & Bird, though they were not read to the court.
The judicial review was presided over by Justice Rob Osborne who reserved his decision.