STRATEGIC SUMMARY DOCUMENTS WITH EXTRACTS FROM STATEGIC LETTERS
Incomplete at 05
June 2015
OFFLINE VERSION
1991
1997
14aug97 from KJL
cm7 oct97
2004
12 May 2004
Business Manager Minerals
Crown Minerals
Ministry of Economic Development
PO Box 1473
WELLINGTON
Dear Sir
Prospecting License Application 31 2583 (Mining Act 1971)
K.J. Landaus
In order to fill in a few gaps in the time line regarding
this application, under The Official Information Act, can you answer the follow
questions for me please?
1.
Given that my application specifically related to access of the land, for what reason did the Ministers of Energy and Conservation withhold the processing and
granting of the application for a period of approximately
8 years.
2.
Why did the Minister of Energy not adhere to the provisions set out in Clause 1 of Section 109, of the Mining Act 1971, yet grant other mining privilege applications
and renewals of existing licenses during the same period
he withheld decisions on this application.
3.
Under Section 109 of the Mining Act 1971; why did the Minister or the Secretary of Energy not inform me during the period specified in Clause 1 of that section, that
they were extending the processing or decision making period relating to Clause 2 of that Section and include the reasons accordingly. I understand from letters that
the Minister of Conservation had some concern regarding claims in the Arahura region but the Department did not place an official objection that I could answer to,
as allowed for in the respective Mining Act.
4.
Why did the Secretary of Commerce advise me that this application would not be granted due to the provisions of the Ngai Tahu (Pounamu Vesting) Act 1997 under
Section 104A of the MA 1971, when this Vesting Act specifically states under Section 5, “Notwithstanding anything in the Crown Minerals Act 1991”.
(This CM Act contains relevant provisions of course to
protect applications under the Mining Act 1971.)
5.
If the Secretary cited the Vesting Act as the reason for not granting the application made in April 1989, then alternatively, what excuse did the Minister of Energy have for
not processing the application by April 1990 under Section
109 of the Mining Act 1971. (Section104A is also subject to Section109.).
6.
Why did the Minister delegate the Secretary of Commerce to
decline this application when this application pertains to Section 240A of the
MA 1971.
Hoping that you may assist as soon as possible please.
Yours faithfully
Kenn Landaus
2004
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
licenses
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.
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.”
RECOMMENDATIONS
(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
2
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.
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
10 June 2004
The above letter and that from Crown Minerals, below, are considered the
most important letters in all correspondence to date.
This letter below and that from Crown Minerals, above, are considered the
most important letters in all correspondence to date.
22jun04
from KJL
Dear
Mr Winfield
Te
Rununga o Ngai Tahu - Applications to mine pounamu.
On
behalf of the Ministry, can you please provide me with answers to the following
questions?
1.
Have the Crown ever entered into any agreement with Te Runanga o Ngai Tahu or
any other
party,
that would give the owners of the pounamu minerals a legal responsibility, or a
transitional
obligation
to allocate mining or access rights, subject to the provisions of the Ngai Tahu
(Pounamu
Vesting)
Act 1997?
2.
The Ngai Tahu (Pounamu Vesting) Bill stated that the Crown determined that it
is quite
appropriate
that those seeking to extract pounamu in the future on the expiry of their
existing
rights,
should be required to apply to Te Runanga o Ngai Tahu.
Letters
to me, since 1996, from the Ministry and the Minister have also stated that I
should apply to
Te
Runanga o Ngai Tahu not the Crown. I note there is no transitional provision
within the vesting
Act
to this effect.
Can
you please advise me if Te Runanga o Ngai Tahu have yet formulated a policy on
any
applications
as such? They had not since I last contacted them.
3.
Can you please inform me if Te Runanga o Ngai Tahu or anyone else who has been
granted
authority
to them, have applied to the appropriate Minister for any access arrangements
in relation
to
pounamu minerals since the enactment and amendments of the Crown Minerals Act
1991?
Yours
faithfully
Kenn
Landaus
cm12jul04
