Including text
of his reply of 10 June 2004, followed by my reply dated 17 June 2004.
Mining License 32 3021 (Mining Act 1971)
K.J. Landaus
I am pleased to see that you note that there is currently no litigation against the Crown on my behalf.
All the more reason therefore that the Ministry continue to provide some specific answers to my questions as requested in my letter dated 12 May 04 and the following.
Please appreciate, before I take these matters up with the respective Ministers, I do need to get my facts right.
Under the Official Information Act, can you therefore answer the following questions please?
1.
Why was my letter of 14 August 1997 to Crown Minerals requesting application forms for the statutory renewal of my ML 32 3021 denied actioning, given that it was received well before the 30 day compliance period set out in Section 77 (2) of the Mining Act 1971?
Please note, Paul Stigley (Crown Minerals), in a letter dated 07 October 1997, stated I did not have a right to apply for a new license and Nick Crang (Legal Section), stated that it was the Ministry’s view that it’s actions were legally correct.
Ministry Reply:
1 The
records show that on 7 October 1997 Mr Stigley responded to your letter of 14
August 1997 advising you that section 77(2) only gives licence holders a right
of priority to apply for new licence ahead of other people.
He went on to explain that section 77
of the Mining Act 1971 is unchanged by the Ngai Tahu (Pounamu Vesting) Act
except that those with existing licences with respect to pounamu in the takiwa
of Ngai Tahu will in future have to apply to Te Runanga 0 Ngai Tahu for a new
licence rather than to the Crown.
There is no record on file as to why
an application form was not forwarded to you. I must assume that this was not
actioned as the Pounamu Vesting Act was passed in the interim, on 25 September
1997, and that licence applications could no longer be accepted in respect of
pounamu.
2.
What is the Ministry’s current interpretation of Section 77(2) of the Mining Act 1971, as it related to this license?
Ministry Reply:
2 Section
77(2) of Mining Act 1971 can no longer be applicable to your licence.
The enactment of the Ngai Tahu
(Pounamu Vesting) Act 1997 vests ownership of pounamu in Te Runanga 0 Ngai
Tahu.
In other words, the Crown no longer
owns pounamu and it cannot therefore grant you a mining right over that
resource.
3.
What is the Ministry’s current interpretation of Section 43 of the Mining Act 1971, as it related to this license?
Ministry Reply:
3 Section
43 of the Mining Act 1971 relates to existing mining privileges.
As mining licence 32 3021 expired on 21 December 1999,
the section is no longer applicable.
4.
If the Ministry eventually considered mineral ownership as the reason for refusing to recognise my rights accorded under the Mining Act 1971, then why did they not eventually consider the relevant clauses under Section 3 and Section 4 of the Ngai Tahu (Pounamu Vesting) Act 1997, that supposedly protect existing privileges and the rights to the respective minerals?
Ministry Reply:
4 Section 4 of the Ngai
Tahu (Pounamu Vesting) Act 1997 protects the rights of existing privilege holders
while the privileges remain current.
In your case, mining licence 32 3021 was unaffected by the passing of
the Act and continued to have effect until it expired in December 1999.
Thereafter, if you wished to continue mining pounamu, you were required
to apply to Ngai Tahu as the new owner of the resource.
5.
Why was my attempt to apply for a renewal of an existing license eventually refused on the grounds of mineral ownership when the minerals actually belonged to me at the time I made and was refused application under statutory provisions?
Ministry Reply:
5 A
mining licence confers an exclusive right on a licensee to occupy land for
mining purposes and to mine for the minerals specified in the licence subject
to certain conditions. While minerals
remain insitu they are still the property of the Crown as the minerals only become the property of the licensee
after they have been mined.
That is why royalties are only paid to the Crown on
minerals mined and sold.
You are therefore incorrect to say that the minerals
belonged to you at the time you enquired about applying for a new licence to
replace mining licence 32 3021.
6.
If the Ministry eventually considered mineral ownership as the reason for refusing to recognise my rights to renew this license, accorded under the Mining Act 1971, then why did they not eventually consider Section 43 of the Mining Act 1971?
Ministry Reply:
6 Section 43 of the Mining Act 1971
relates to protecting existing mining privileges.
Your
rights under the terms and conditions of mining licence 32 3021 remained
unaffected, through the provisions of both section 43 of Mining Act 1971 and
section 4 of the Ngai Tahu (Pounamu Vesting) Act 1997, up to its expiry in
December 1999.
As
you are aware, from October 1997 the Crown could no longer issue a new licence
as it was not the owner of the pounamu resource.
7.
Why did the Ministry grant other mining licenses for a period of up to 42 years, yet refuse renewal of this mining license?
Ministry Reply:
7 Other mining privilege applications
that were granted around this period were either much further advanced in the
processing cycle or involved minerals other than pounamu.
Please note that this license was denied the right of renewal approximately 2 years before its expiry date.
________________________
Dear Mr Winfield
Mining License 32 3021 (Mining Act 1971)
K.J. Landaus & S. McKay
In your letter of reply dated 10 June 2004, you have confirmed the opinion as earlier stated by the Minister and the Ministry, that license applications could no longer be accepted for minerals classified as pounamu.
You also state that Section 43 of the Mining Act 1971 is no longer applicable because the above license has expired and the mineral is now vested with Te Runanga o Ngai Tahu.
Once again please appreciate that the timeline is important when considering these matters.
With regard to my attempt to apply for a new license under Section 77 of the Mining Act 1971.
This
license remained current (an existing privilege) when I advised Mr Fowke, the
Manager of Crown Minerals my intentions and requested application forms
pursuant to Section 77 and Section 43 of the MA 1971, in August 1997, 28 months
prior to the expiry date and two months prior to the enactment of the vesting
Act.
Both by
phone calls and in a letter of reply dated 7 October 1997, Mr Stigley,
Permitting Manager, advised me that I would have to apply to Te Runanga o Ngai
Tahu.
His
interpretation of Section 77, MA 1971 was to say at the least, unbelievable.
In a
letter dated 6 May 1997, the Minister of Energy replying to Damien O’Connor on
my behalf, stated that a mining license cannot be renewed and that the right of
priority under Section 77 of the MA 1971 has not been preserved under the Crown
Minerals Act 1991.
As you are
aware, I hold many other letters that state the same things.
In your
letter of 10 June you basically advised me of the same.
It is
considered as irrelevant that the application could be granted or declined for
any particular mineral sought on the specific land.
The point
is that my rights were denied by the Crown prior to the enactment of the Ngai
Tahu (Pounamu Vesting) Act 1997 and the period 30 days prior to the expiry date
of this license, thus causing extreme disadvantage to my accorded priority over
other persons in legitimately applying for a new license.
I allege
that a new application in the process would have further established my rights
to have the new owners of any minerals applied for, consider this right and
application in any future transaction of mineral ownership and the perhaps the
rights thereof to mine or extract it.
Do you not
consider, the Crown therefore have denied me the right to apply for a new licence
on that land for whatever mineral I wished to mine by not responding to my
written requests and by since refusing to recognise that these rights were also
allowed for pursuant to the particular provisions in the Crown Minerals Act
1991 and the Ngai Tahu (Pounamu Vesting) Act 1997 regardless of the actual
vesting of the mineral ownership.
As you are
aware, Section 43 of the MA 1971, especially subsection (2), is specific to the
express reservation of rights to the holder of the existing mining license and
that any Crown grant or conveyance shall contain express reservation of these
rights.
These
rights include those provisions in Section 77 of the MA 1971.
I have included a copy of my statements of claim for your information which may help you understand my position on matters generally.
I passed over a copy of this to Glenhorrow Holdings directors in 1991.
Kenn Landaus