01 September 1999
Sir Brian Elwood
Chief Ombudsman
Office of the Ombudsmen
PO Box 10152
Wellington
Dear Sir
Before your office complete your evaluation of facts I wish to further submit these following principle issues for your consideration.
Not withstanding other relevant matters raised with you to date:
Crown Minerals advised the Secretary of Commerce that section 104A
conferred the right for the Minister of Energy to delegate authority to decline
applications.
Section 240A of the Mining Act 1971 prohibits any delegation of powers relating to Crown Land under Part III of the said Act. My application relates to this Part.
Although S.21 to S.151A of the Act was repealed by S.121(1) of the Crown Minerals Act 1991, S.240A was not repealed and furthermore S.112 of the CM Act over rules any provisions as such.
Accordingly the Ministry have declined this application under S.104A, thus proving my point relating to the power of S.112 of the CM Act.
Crown Minerals and the
Secretary of Commerce have stressed that S.69 of the MA Act provides the power
to grant a mining license and also allows the Minister of Energy wide
discretionary powers.
Although S.69 of the MA Act is specific to mining licenses it does not confer on the Minister the right to disregard other provisions of the Act.
S.48 of the Act is specific to this application and subsection (1) clearly indicates the Minister is subject to the provisions of the said Act.
The provisions in this case being S.109 (1,2,3), notwithstanding the enactment’s of the Ngai Tahu (Pounamu Vesting) Act 1997; S.3 and S.5, both stating in part;
“ notwithstanding any other enactment “
The application for PLA 31 2583 was originally made in April 1989 in good faith subject to the provisions of the Mining Act 1971; in particular S.8 (now pertaining to land since granted to Ngai Tahu), S.44, S.45, S.46, S.48, S.49, S.50, S.104, S.108, S.109 and including the provisions extracted from Regulations as stated in the Guide to the Mining Act 1971 i.e.; 4.4; 4.2.1; 4.2.2; 4.5; 4.6.
Subject to regulations, a priority was granted on the initial receipt of the application after approval from the Chief Surveyor offices, Mines Division and the three local authorities.
No objections were received on the statutory public notifications.
Nine years later the Crown vested the minerals to other private parties during which time my application rights remained current.
I consider the Crown not only breached good faith and the law relating to the statutes but could well have perpetrated an act of fraud subsequent to the provisions and regulations promoted within the Acts.
In other words the Crown created the hope and opportunity for me to economically invest my livelihood in the discovery and access of these minerals. In return they later revoked my interests by vesting my discoveries to other private concerns without due regard to the principle purpose they originally promoted these expectations.
The Ministry purposely vested the minerals while applicants retained existing applications over them thus creating severe losses, damages and disadvantages to myself the legitimate discoverer and applicant.
Application for Renewal of Mining License – 32 3021
Prior to the introduction of the Ngai Tahu (Pounamu Vesting) Act 1997, I made application to Crown Minerals to have this current mining license renewed according to the Mining Act 1971 and Crown minerals Act 1991.
The Ministry refused to allow me to make application stating it would not and could not be granted pursuant to the Ngai Tahu (Pounamu Vesting) Act 1997.
There has been much argument over this issue with both the Ministry and the Minister of Energy in the past.
In a Crown Minerals letter of 17 March 1998, setting out their full and
final position on matters, they state:
"
section 77 of the MA 1971 only ever conferred on an existing license holder a
right in priority over other persons when applying to have granted a new mining
license." Irrespective of
the Ministry's interpretation two issues remain outstanding;
Section 77(2) of the Mining Act 1971 states:
" The licensee shall have the right in
priority over every other person to have granted to him a new mining license in
respect of the land to which the existing license relates, if he applies for a
new license not later than 30 day's before the expiry of the existing
license."
The enactment does not mention the right of priority to apply or the word application; it specifically states:
" to have granted to him ".
On page 6 of my Notes and Files, Ref.10, Source No.8 /O.I. Act - Letter Crown Law Office to Ministry of Commerce, it states in part:
" 6. It is interesting to note that Section 111 did not include a reference to Section 77 of the MA 1971".
Section 111 states:
" -- a holder of an existing privilege makes an
application in respect of Crown owned minerals to which any of the enactment’s
specified in subsection (2) would have applied if this Act had not been
enacted, then, notwithstanding section 107, --".
As a renewal for ML 32 3021 does not apply to any of the enactment’s specified in 111(2) and (1) states in part: " notwithstanding Section 107 "; then a renewal application under Section 111(2) of the CM Act and a new license had to be applied for under Sections 111(1b), 23, 32, then pursuant to Section 43 of the MA 1971, the existing rights of the applicant cannot be interfered with by grant or conveyance (i.e. Ngai Tahu (Pounamu Vesting) Act 1997).
Therefore because my rights to apply for a renewal of ML 32 3021 were initially denied by the Crown, but after argument in letters, later conceded by the Minister on the basis that the application would be approved but the license or permit would not be granted on the grounds that the Ngai Tahu (Pounamu Vesting) Act prohibited any grant of a permit.
The Crown have allegedly breached Section 43(2) of the MA 1971 by not providing express reservation of the rights to which the holder of the existing mining privilege is entitled.
Furthermore the Ministry have not provided an application form for renewal as requested in my letter of 14 August 1997, prior to the enactment of the Ngai Tahu (Pounamu Vesting) Act 1997.
By not adhering to these matters the Crown have allegedly committed an offence under Section 234 of the MA 1971.
Ministry statements and the vesting Act advise that:
" The rights of an existing licensee will not be affected by the Ngai Tahu (Pounamu Vesting) Act 1997."
Section 3 of that Act, states in part:
"--Notwithstanding any other enactment--"; and Section 4, states: " (1) Nothing in Section 3 affects an existing privilege or the right or obligations of any holder of an existing privilege and Part 11 of the Crown Minerals Act 1991 continues to apply in relation to that privilege as if this Act had not been passed"; Section 5, states in part: " Notwithstanding anything in the Crown Minerals Act 1991"; and: "(a) Permit pursuant to an application made under Section 23 of that Act before the commencement of this Act, or (b) Mining privilege pursuant to an application to which Section 112 of that Act applies in respect of any pounamu to which Section 3 applies ".
(b) Applies only to existing applications
The
retention of my rights pertaining to ML 32 3021 and its renewal, accorded under
Section 43 of the Mining Act 1971, states fully:
43.
Existing mining privileges protected
(1) No Crown grant or
conveyance, nor the grant of any mining privilege, shall have the effect of
revoking or injuriously affecting any existing mining privilege acquired and
held under this Act or any former Mining Act, whether or not any reservation or
exception of the existing mining privilege is contained in the Crown grant or
conveyance or the grant of the mining privilege.
(2)
Every such Crown grant or conveyance and every
such grant of a mining privilege shall be deemed to contain an express
reservation of the rights to which the holder of the existing mining privilege
is entitled. This enactment has
been considered in the vesting Act by including provision for the
"existing privilege".
The vesting Act has also considered subsection (2), because this
specifically states an express reservation of the rights
These rights are provided for in Section 77 of the Mining Act 1971
Mining Permit
Application – 41 452
This
application was lodged on 28 March 1996, prior to the Minerals Programme, 1
October 1996 and Proposed Regulations for Minerals and Coal, July 1997 and the
Ngai Tahu (Pounamu Vesting) Act 1997, 1 October 1997.
The
application and fees were accepted by Crown Minerals and cleared to proceed for
the Chief Surveyors report which was also accepted. Therefore the application
was in accordance with all provisions of the Crown Minerals Act 1991 including
Section 4 of the Act.
Official advise was received in the latter part of
June 1996 (16 June 1996 onwards) by the Secretary of Commerce stating that
existing applications for nephrite jade, bowenite and serpentine would not be
granted.
This advice was received prior to the enactment of the
Ngai Tahu (Pounamu Vesting) Act 1997
The advice therefore was of a predetermined nature
considering the Bill was not even formulated, notwithstanding the fact that
Parliament yet had to approve the Bill and the Governor General sign it into
law. This did not eventuate until 1 October 1997, nearly 16 months later.
I allege the Crown promoted and encouraged persons to
explore, prospect and mine Crown minerals pursuant to the Act's prior to these
events, only to give us 3 to 4 months notice that all statutory mining
privilege applications under the Act's would not be granted, irrespective of
previous evaluation, geological study and discovery. Including the statutory
mining privilege applications subsequently made in accordance with the Act and
the relating business and financial considerations made in anticipation for
receipt of such licenses and permits.
The delineation of the whereabouts of discoveries were
made as part of our application, therefore both the Crown and Te Runanga o Ngai
Tahu have allegedly been extremely advantaged by obtaining this information,
now to our disadvantage.
I hope these matters and my views may be of help to conclude your
investigation.
Yours sincerely
Kenn J Landaus