Royal Forest and Bird Protection Society of New Zealand Inc v Buller Coal Ltd

COURT OR TRIBUNAL

High Court of New Zealand

DATE FILED (OR FIRST HEARING DATE)

12/07/2012

LITIGATION TYPE

Project Approval - Mitigation

SUBJECT MATTER

Coal mine

REVIEW TYPE

Judicial review

SUMMARY

(Extract from first judgment)

At [1]-[3] Section 64 of the Judicature Act 1908 provides that if the circumstances of a civil proceeding pending before the High Court are exceptional, the High Court may order that the proceeding be transferred to the Court of Appeal. Buller Coal Limited has applied for an order under s 64 to remove this consolidated proceeding from the High Court to the Court of Appeal…The application raises the following issues: (i) Does the jurisdiction under s 64 extend to appeals filed in this Court from the Environment Court pursuant to s 299 Resource Management Act 1991? (ii) Do the circumstances of this particular proceeding qualify as exceptional to justify removal? At [[31]: In my view, to allow transfer in this case would set an unfortunate precedent and would breach the well established principle that the power to bypass the High Court should be exercised only sparingly and only exceptionally for clear reasons applicable to the particular case.

(Extract from second judgment)

At [1] Buller Coal Limited (“BCL”) and Solid Energy New Zealand Limited (“Solid Energy”) mine coal. The Royal Forest and Bird Protection Society1 and West Coast ENT Incorporated (“West Coast ENT”) are advocates for the environment. They oppose coal mining proposals by Solid Energy and BCL because the coal produced when burnt will omit more than 20 Mt of CO2 in total. CO2 is a greenhouse gas. Declarations were sought in the Environment Court as to whether the effect of the combustion of this coal on climate change is a relevant consideration under s 104(1)(a) of the Resource Management Act 1991 (“RMA”). At [56] The Resource Management (Energy and Climate Change) Amendment Act 2004 removed the jurisdiction of local authorities to consider the effects on climate change of the discharge of greenhouse gas emissions from the end use of coal until a national environmental standard addressing those emissions has been produced. Once that standard has been produced it will be for the local authorities to determine whether and in what way policies and rules will be employed to control greenhouse gas emissions in a manner consistent with that standard.

(Extract from third judgment)

At [1], [5] West Coast ENT Incorporated have filed a notice of application for leave to appeal to the Court of Appeal.…Given that there is no opposition, and that the questions of the declarations are matters of general public interest, I grant leave as sought by the appellants.

CASE DOCUMENTS

Royal Forest and Bird Protection Society of New Zealand Inc v Buller Coal Ltd [2012] NZHC 1736
Royal Forest and Bird Protection Society of New Zealand Inc v Buller Coal Ltd [2012] NZHC 2156
Royal Forest and Bird Protection Society of New Zealand Inc v Buller Coal Ltd [2012] NZHC 2532