10 June 2004
Dear Mr Winfield
Prospecting License Application 31 2583 (Mining Act
1971)
K.J. Landaus
Considering that your reply to my letter regarding the above
application seemed to follow the same outline as previous letters to me on the
issues, I have responded accordingly in order to highlight a few unmentioned
issues, which may raise the question why the Crown has never substantiated the
legality of its actions.
I would therefore kindly appreciate your views if the
Ministry disagree on any matters herein.
Please note that the time-line is very important when
considering my views and questions on events relating to this
application.
1
Your prospecting licence application was accepted for processing on 18
April 1989.
As the application area included land administered by the Department of
Conservation.("DOC"), the consent of the Minister of Conservation was required
pursuant to section 26(4) of the
Mining Act 1971. DOC advised that as the Waitangi Tribunal was currently
deliberating on the Ngai Tahu claim, part of which dealt with the greenstone
resource, the department considered
that it would be inappropriate to make any decision in respect of this
application until the final recommendation of the Tribunal had been
made.
The Waitangi Tribunal released its report and recommendations in
1991.
One of the recommendations was that Crown owned pounamu in the Takiwa of
Ngai Tahu should be returned to Ngai Tahu.
As a consequence of these developments, and after receiving legal advice,
the Crown decided not to issue any further licences or permits for pounamu
pending settlement of Ngai Tahu's
Treaty claims.
Your application was therefore unable to be progressed beyond the
preliminary stages until the promulgation of the Ngai Tahu (Pounamu Vesting) Act
1997 at which time it was declined.
1.
From all records pertaining to the period in question, the Department
of Conservation did not have the mandate to withhold the ministerial decisions
on this application.
No legislation existed at the time to warrant the Department of
Conservation’s excuse that it would be inappropriate to make any decision in
respect to processing the application, especially when the
Waitangi Tribunal did not release its findings until 1991.
This application had completed all its pre-ministerial processing by
November 1990, irrespective of the unusual delays within the
departments.
I therefore question, if Crown Minerals legal advice was not to issue
further licenses after the Waitangi Tribunal report made in 1991, why the
Minister of Energy did not adhere to the provisions of
Section 109 and/or Section 104A of the MA 1971, at that time, rather than
keeping my application waiting for a further six years.
2
Prospecting licence application 31 2583 could not be granted within the
terms of section 109(1) because of the matters discussed
above.
Other mining privileges applications that were granted during this period
were either much further advanced in the processing cycle or involved other
minerals that were not subject to the
pounamu moratorium.
2.
The application should have been granted or declined, as referred in
(1.) above.
Because all other mining privilege applications mentioned below, were
processed in the same period up until 1991 when you have advised that the Crown
decided not to issue any further licences or
permits for pounamu,
With regard to other mining privileges processed and granted, please
note:
The Minister of Energy granted at least six other licenses after my
application was accepted by the Ministry and prior to the Waitangi Tribunal
report.
ML 32 02522 (pounamu) by
Mawhera Incorporation, was granted by the Minister on 31 October 1989, for a period of 42 years, ML 32 3021 (pounamu) was granted
on 21 December 1989, for 10
years, ML 32 2682
(pounamu) was granted in November 1990, for 10 years, ML 32 02903 (pounamu) was
granted on 17 August 1989 for 20 years, ML 3202814 (pounamu) was granted for 10
years
and ML 32 02964 (pounamu) was granted for 10 years, all with a right in priority over every other person to have granted
to him a new mining license in respect to that land, under Section 77 of the
Mining Act 1971.
As the
Minister granted a license for 42 years, then all relevant ministries were well
aware of this, including the Department of Conservation.
The Ministry did not advise me until April 1994 that they had
agreed not to process applications until the pounamu issues were resolved. No
moratorium or court ruling substantiated this decision.
In November 1990, the Minister of Energy advised Judge
McHugh, Waitangi Tribunal, that an application for a mining license for pounamu
would have to be granted according to the statutes and his
responsibilities.
I herein include exerts from related letters:
My
Ref 3:
(a) LETTER MINISTRY OF COMMERCE TO MINISTER OF ENERGY
(b)
LETTER MINISTER OF ENERGY TO WAITANGI TRIBUNAL
Dates: (a) 8 NOVEMBER 1990
(b)12 NOVEMBER 1990
Extracts:
(a)
MINING
LICENCE APPLICATION 32 2682 - TW SWEETMAN & GA HAVELL;
- - 'No
objections to the grant of the application were lodged with the planning
tribunal and the applicants have lodged the required bond and survey
plan'.
—‘DOSLI
has confirmed that the area is located in the Taramakau catchment rather than
the Arahura catchment. It is therefore not within the area covered by your
undertaking to the Waitangi Tribunal.’
(a)
LEGAL POSITION
“Section
109 of the mining act requires that an application be finally disposed of by
being granted or refused within twelve months after the date on which the
application was made unless an extension is granted because of special
circumstances or an objection is lodged. The Court Of Appeal have stated that
the effect of this section is to make time important under the act and to
require you, as the Minister Of Energy, to act within a reasonable time in
dealing with an application. In the present case it is considered that you would
be failing in your statutory responsibilities if you deferred the granting or
refusal of this application until the Waitangi Tribunal report on the Ngai Tahu
claim was completed and published.
The
report of the Waitangi Tribunal is recommendatory only and cannot alter the law
under which you are required to act, nor the ownership of
minerals.
Given
that no objections have been lodged to this application, that the application
area is outside the Arahura catchment
(being the area you have undertaken to give special consideration, that
the minerals sought are crown owned, and the nature of reports by the Waitangi
Tribunal, it is considered that there is no justification for deferring your
final
decision
on this application.
Accordingly,
it is recommended that you proceed immediately with granting the Mining
Licence.”
(C} NOTE THE MINISTRY'S LEGAL ADVICE THAT
YOU SHOULD PROCEED IMMEDIATELY TO GRANT THE MINING
LICENCE;
(D) APPROVE THE GRANT OF A MINING LICENCE
PURSUANT TO SECTION 69 OF THE MINING ACT 1971 TO -- FOR A TERM OF TEN YEARS
--'.
(b)
MINISTER'S LETTER TO WAITANGI TRIBUNAL
'--
In this present case, I consider that I would be failing in my statutory
responsibilities if I deferred the granting or refusal of this application until
the Waitangi Tribunal report on the Ngai Tahu claim was completed and published.
I am required to act in accordance with the law as it presently exists and on
the basis of the existing ownership status of minerals. -- on the information
before me, I am of the view that the Mining License sought should be granted and
I have accordingly given the necessary approval.' -- JOHN LUXTON
3
You were never notified regarding a section 109 extension because there
is no record that an extension was ever granted.
You were however notified on a number of occasions of the reasons for the
delay in processing.
I note that you question why DOC did not lodge an
objection.
This reasons for this was because your application never reached the
stage where it was advertised for objections and DOC never made a decision
regarding consent prior to the Crown's
decision to no longer grant mining privileges for
pounamu.
3.
The Ministers obligations as defined in Section 109 are clearly and
adequately defined in the exerts (2), as above.
Please note however, that I was not informed of any decision on my
application until April 1994, 40 months after my application had reached the
ministerial stage.
I once again question why there were delays in processing my application,
when other applications as in (2) above, did not experience such delays during
the specified timeframe.
I have raised the point on objections in my point (5)
below.
4
The Ngai Tahu (Pounamu Vesting) Act 1997 section 5 expressly states that
notwithstanding anything in the Crown Minerals Act the Minister of Energy must
not grant any permit under the
Crown Minerals Act irrespective of whether an application was lodged
prior to the enactment of the 1997 Act and any mining privilege pursuant to an
application to which section 112 of the
Crown Minerals Act relates.
You will be aware that section 1 12 relates to existing applications
under the Mining Act 1971.
Your application was lodged under the Mining Act 1971 and subsequent
declined under section 104A of that Act.
4.
I do not disagree with your response to this question, but the specific
wording of
“Notwithstanding anything in the Crown Minerals Act 1991”, makes my point
that it allegedly refers to all matters in respect to existing applications,
including this PLA.
If an application under the Mining Act 1971 was previously not dealt with
according to the law or was shown disadvantage to the applicant, according to
the principles and provisions of the mining Acts
or any other Act, then surely this provision will cause reason for the
PLA to be lawfully unresolved, in respect to the Ngai Tahu (Pounamu Vesting) Act
1997.
Especially as this PLA, seeking a maximum term of 3 years, was declined
on the basis of mineral ownership, 8 years after its receipt. Notwithstanding
all other factors.
This query raises essentially the same as points addressed earlier in
this letter.
1 refer you to my response
to points 1 and 3 above.
5.With respect, I think you have missed my point
here.
If the Minister or Secretary
considered that my application could not be granted because of the ownership of
the specified mineral then why was my application not approved or declined prior
to the vesting of the mineral, based on the Ministers view that it was
inappropriate for him, and the Minister of the land specified in the
application, to issue a license.
By not doing this, the Minister
has allegedly contravened not only his legal responsibilities,
but has expropriated my rights to
hear and appeal any objections
which concern the reasons which you have referred to in your reply to my points
1 and 3.
These matters should have been
considered at the time my application had reached the ministerial stage of the
application process.
Considering that no other
application for “pounamu minerals” were officially objected to by the Waitangi
Tribunal or Te Rununga o Ngai Tahu at the time.
6.Section 240A of
the Mining Act does not apply to section 104A of the Act.
The Secretary of
Commerce declined your prospecting licence pursuant to section 104A of the Act
under delegated authority from the Minister of Energy.
6.With all due respect, I
allege Section 240A of the Mining Act 1971 relates directly to decisions
pertaining to the particular designation of the land in this
application.
For example, Section 26
subsection 6, and therefore should relate specifically to decisions by the
Minister. A prospecting application is an application to enter the specific
land.
Yours faithfully
Kenn Landaus