Reality landed with a thud last year, when Bathurst Resources decided to close its coal mine in the Malvern Hills, near the appropriately named Canterbury town of Coalgate.

The company’s subsidiary company blamed the decision on the “onerous regulatory burden” of complying with the Resource Management Act.

In 2020, Bathurst had sought to expand the mine. But once the closure was announced it pivoted, lodging consents to close and rehabilitate the site it ran from 2012, and legally owned the following year.

The company also wanted retrospective approval for non-consented and non-compliant activities – which, you’d think, somewhat dilutes the argument about the costs of onerous “compliance”.

Further, critics may argue, profits made from the mine have come with an environmental cost that, if nature is to see justice, should be put right.

Indeed, environmental degradation was central when, last month – in a further, emphatic thud – Bathurst’s consent applications were declined.

In their 54-page decision, independent hearing commissioners Sharon McGarry and Graham Taylor said the company’s proposed compensation package was inadequate to remedy potential and actual adverse effects.

Yesterday, the Environment Court confirmed Bathurst – a listed Australian company – lodged an appeal on Monday. Interested parties have until July 29 to join the appeal.

Bathurst’s chief executive, Richard Tacon, tells Newsroom by email the appeal relies on the view that it holds consents to carry out “the majority” of coal mining activities at Canterbury Coal Mine.

Reasons for the appeal include that commissioners made numerous errors in assessing effects; incorrectly interpreted the consented baseline; and failed to impose appropriate consent conditions to address their concerns.

Tacon, who’s Wellington-based, says: “The appeal seeks that the decision of the commissioners to decline consent is cancelled, and that the consents applied for be granted.”

Nicky Snoyink, regional conservation manager for environmental lobby group Forest & Bird, made a submission to the consent hearing. She isn’t surprised Bathurst appealed.

Last month’s decision was hard-hitting, she says.

“It really showed the company up for what they are, with their complete disrespect for the RMA, and the environment, and our environmental regulations,” she says.

“They have to understand the consequences of their actions, and they need to be prepared to come back to the table to provide some appropriate and adequate compensation.”

Another submitter, Rosemary Penwarden, of Coal Action Network Aotearoa (CANA), tells Newsroom: “Bathurst Resources are cowboys when it comes to the way they operate in Aotearoa, something clearly recognised by the commissioners.”

The mine closure comes as coal becomes an international pariah because of climate change.

In March, United Nations secretary-general António Guterres urged governments, companies and local authorities to end the “deadly addiction” to coal.

The latest climate science, assessed by the Intergovernmental Panel on Climate Change, says no new coal power plants should be built if the world is serious about avoiding the most dire effects of climate change.

Last year, the International Energy Agency warned investments in oil, gas and coal must cease.

In New Zealand, the Government is phasing out coal boilers used in public sector buildings, and it has banned new low- and medium-temperature coal boilers.

But existing ones used for food processing, such as in dairy factories, aren’t expected to stop being used until 2037.

The Climate Change Commission says coal burning or electricity generation must end. The Government is now exploring a pumped hydro scheme.

There’s a rearguard action by the coal industry to push its relevance, as evidenced by this story on TVNZ’s Sunday programme, and, just this week, a story of the country’s “dependence” on coal on 1News.

“The coal industry has had a free pass on its pollution for far too long,” says Penwarden, of CANA. “But we’re in a climate emergency: it’s time for the Government to put its big emission reduction policy boots on and put an end to both the mining – and burning – of coal, far sooner than its current plans.”

Beyond a convenient approach

It’s worth delving into last month’s decision by commissioners McGarry and Taylor, to illuminate the clash of experts at consent hearings, and the potential difficulties with closing coal mines.

A central question is: What is “existing”?

The decision report says it’s not necessarily a snapshot of how things stand in the Malvern Hills now, as, in this case, the environment has been changed by unauthorised activities and non-compliant discharges.

“While it may be convenient for the applicant to focus their assessment of the environmental effects post closure, this approach ignores the need to assess the environmental effects of the unconsented operational and active mine closure activities which have occurred,” the commissioners wrote.

As reported previously, councils said the mine operated outside its permitted footprint, extracted more coal than allowed, and breached a series of consent conditions.

Council experts in last year’s hearing said wetlands, likely to be significant ecosystems providing rare habitat for indigenous species, had been removed from within the mine’s operational area. Also, hydrological changes were unconsented, and there had been non-compliant and unauthorised discharges of contaminants, such as soil, boron, manganese and zinc.

(Environmentally safe concentrations of boron are “poorly defined”.)

The area is known to be home to the nationally critical Canterbury mudfish/kōwaro.

Bathurst was represented at the hearing by a phalanx of 10 expert witnesses, who reached agreement on some key matters with experts representing the Selwyn District and Canterbury Regional councils. (There’s a lot to consider, including land remediation, monitoring contaminant losses, and trigger levels for action.)

Tacon, Bathurst’s chief executive, says disagreement remained on the proposed water management strategy, water monitoring conditions, the level of unconsented ecological effects caused by Bathurst, and the level of retrospective effects required to be offset and compensated for.

“It was this disagreement between the experts that resulted in the commissioners’ decision to decline the consent. The commissioners wholly agreed with the evidence of the councils’ experts on the above matters and, in our view, provided insufficient reasons for disregarding the evidence of Bathurst’s witnesses.”

Let’s dissect a few of these divisions.

Periphyton ecologist Dr Kristy Hogsden, of Crown research institute NIWA, appeared for Bathurst.

The commissioners’ report said: “She concluded that provided existing contaminant limits were achieved and maintained, and there was no large-scale disturbance to the rehabilitated land, it was likely the existing aquatic values in the receiving environment would be protected.”

In response to questions, she acknowledged “likely positive future effects” were more accurately “a reduction of adverse effects”.

Commissioners strongly disagreed with Hogsden that two years of monitoring data, from 2020, in Tara Stream and Bush Gully Stream was “baseline monitoring”. Rather, they said it recorded “the current degraded state of the receiving environments as affected by both consented and unlawful activities”.

“In our view, there is no doubt that mining activities have significantly contributed to the current degraded state of Tara Stream. Ecological values have been significantly adversely affected by contaminant discharges and more recently by reductions in water flows.”

Commissioners agreed with regional council experts Dr Philip Grove, a science team leader, and principal scientist for surface water quality and ecology Dr Adrian Meredith, that protection and enhancement of significant habitat for kōwaro is nationally important, and must be a key objective of the mine closure.

Consultant ecologist Dr Gary Bramley, appearing for Bathurst, said the permanent loss of seepage wetland in the mine operations area was of “negligible magnitude”, and the effect was “very low”.

In answer to questions, however, he said non-compliant discharges to Tara Stream contributed to adverse cumulative effects and “he agreed this should be taken into account and compensated”.

Selwyn council’s ecological consultant, Mike Harding, said Bramley understated the value of wetlands because he didn’t use statutory criteria.

Siding with Harding and Grove, the commissioners said the wetlands “were likely to have been significant wetland ecosystems providing rare habitat for indigenous species”.

“The applicant has failed to recognise the significant scale and extent of unconsented mining activities.” – Commissioners Sharon McGarry and Graham Taylor

The importance of these assessments is to assess the adequacy of Bathurst’s proposed compensation package – a suite of measures to offset or compensate for adverse environmental effects.

The package comprised six elements, spanning 3.4 hectares, including the enhancement and restoration of what’s known as the north property wetland, fencing a “raised spring”, and planting the margins of drains and ponds. Bramley said the package would have “ecological benefits beyond the status quo”.

But because the company removed a proposal to improve Bush Gully Stream’s wetland – because, among other reasons, it doesn’t own the land – commissioners said the package remained relatively unchanged from what was originally offered. This, they said, was inadequate.

Monitoring of the package’s elements was suggested, but Meredith, for the regional council, said that can’t be deemed compensation or remediation.

His colleague, Grove, referred to a guideline document on biodiversity offsetting, which said there should be “no net loss” from the removal of significant wetlands. Therefore, Bathurst’s offer to improve existing wetlands, rather than creating new areas to offset those lost, was inadequate, commissioners said.

Waterways would probably have to be monitored for decades, commissioners suggested, to check on a wide variety of contaminants, and ensure life-sustaining flows.

“In our view, the applicant has failed to recognise the significant scale and extent of unconsented mining activities that have occurred and ultimately has failed to adequately assess the environmental effects of the activities pre-closure.

“It has also failed to recognise the significant cumulative effects of mining activities, forestry and farming on the Tara Stream and Bush Gully Stream and the need to address degradation.”

Bathurst boss Tacon tells Newsroom the commissioners “proceeded directly to decline the consents”, instead of giving the company an indication of its view, and providing a chance to propose additional conditions and offsetting. “This is irregular.”

However, their report appears to cover this point.

Commissioners considered issuing an interim decision, indicating their intention to refuse the consents, to give Bathurst time to propose further compensation “commensurate with the level of adverse effects on the environment”.

“We concluded we had already provided several opportunities for further expert conferencing and for the applicant to amend the compensation proposed to satisfy the councils’ experts.”

Bathurst was granted three regional council consents for Canterbury Coal Mine in mid-2017. Before that, regional council scientist Meredith told commissioners, monitoring at the site was sporadic.

The more attention was paid to the mine, the more problems appeared to be found.

Bathurst was issued 27 infringement notices in 2017 for sediment discharges to Tara Stream and Bush Gully Stream. The company was fined almost $40,000 for unauthorised sediment discharged into the Waianiwaniwa River and Bush Gully Stream.

Tacon says leading up to the mine closure decision, Bathurst’s view was its consents provided for its operations, but the consents contained “incomplete and unclear” descriptions and were “not up to modern consenting practices”. It entered the recent consent hearing on a without prejudice basis, “to avoid enforcement risk”, he says.

Last month, the commissioners were clear about what they believed. Their report said the “complex and protracted” consent process reflected Bathurst’s “disregard for the RMA and its requirements” since taking over the mine in 2012, and significantly expanding operations.

The question now is, if Bathurst’s appeal reaches a hearing will the Environment Court agree?

David Williams is Newsroom's environment editor, South Island correspondent and investigative writer.

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