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Royal Forest & Bird Protection Society of New Zealand Inc v Southland District Council - judgment

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Royal Forest & Bird Protection Society of New Zealand Inc v Southland District Council - decision

Filing Year For Action

Bathurst Resources Limited (BRL) wanted access to Southland District Council-owned forestry land to assess the viability of extending an existing coal mine in Southland. The coal mine would be operated by BRL’s wholly owned subsidiary, New Brighton Collieries Ltd (NBC). 

In April 2021, Southland District Council (Council) at a full council meeting resolved to: 
(a) enter into an access arrangement with BRL regarding commercial forestry land owned by the Council (Ohai Commercial Forest), for coal exploration purposes; and
(b) authorise its officers to negotiate an access arrangement for mining purposes regarding the land (together, the Access Decision).

Forest & Bird challenged the decision on eight grounds, arguing, in essence, that the Council erred in its assessment of the significance of the Access Decision under the Local Government Act 2002 and in deciding that public engagement or consultation was not required before making the Access Decision. 

NBC applied to strike out the decision in the High Court, including on the ground that the access permit did not permit any commercial mining of coal. Any such mining that might occur in the future would only follow the granting of a mining permit by the Crown, as well as a publicly notified resource consent process under the Resource Management Act 1991. Associate Judge Johnson of the High Court, on November 4, 2021, declined to rule on the strike-out application and directed that it be heard with the substantive judicial review application. 

On March 6, 2023, Justice Osborne of the High Court declined the substantive application, including declining to accept Forest & Bird’s categorisation of the Access Decision as a “climate change” decision and, as such, a decision (arguably) subject to a heightened standard of review. Osbourne J also accepted, in part, that there was a meaningful distinction to be drawn between Council making a decision under the Crown Minerals Act 1991 as a private landowner, compared to Council making a decision as a regulatory body under the Resource Management Act 1991, for example. One of the errors Forest & Bird argued was that the decision to facilitate the expansion of coal mining operations was unreasonable. While Osbourne J accepted that “it may be semantically correct to describe an access arrangement as something that ‘facilitates’ a subsequent expansion of coal mining, it is fundamentally important to considering the reasonableness of the Council's approach that the Council, by agreeing to enter into an access arrangement, was not approving the expansion of coal mining”, as such the Council’s logic fell ‘well short’ of being perverse or absurd”. 

Forest & Bird appealed to the Court of Appeal, pursuing three interrelated substantive grounds, being that the Council erred in the Access Decision:
By assessing the access decision as ‘not’ significant; and so 
By deciding that consultation or seeking the views and preferences of persons likely to be affected by, or to have an interest in, the decision was not required; and 
Considering that any need for consultation or public engagement could be addressed by the imposition of the downstream publicly notified resource consent condition. 

Forest & Bird also maintained on appeal that the Council's decision was unreasonable and that, in light of the climate change context, the courts should apply a “heightened scrutiny” standard of review. 

A bench consisting of Justices Katz, Mallon, and Ellis from the Court of Appeal, on July 16, 2025, dismissed the appeal. The decision was largely based on the fact that by the time of the hearing in the High Court, NBC had completed its exploration activities and made no resource consent application. There had also been legislative amendments repealing sections 104E and 70A of the Resource Management Act 1991, which previously prohibited local authorities from considering discharges to air of greenhouse gas emissions in exercising their resource consenting and rule-making functions under the RMA (except to the extent that the use and development of renewable energy enables a reduction in the discharge into air of greenhouse gases). The Court of Appeal held that the issue was moot at the time of the first hearing and so, given these material changes, any grant of declaratory relief would be empty. 

The Court of Appeal acknowledged the ‘but for’ analysis urged by Forest & Bird, that there can be no coal mining without the grant of access for exploration; however, it held that the reality was that under the Crown Minerals Act 1991, a denial of access by the Council did not mean access would not be granted. The Court further held that while granting access may have opened the first “door,” doing so does not mean that the subsequent “doors” will also be open, or even tried.
