17 November 2004

Dear Mr Johnson

I refer to previous correspondence with regard to your complaint about the responses that you have received from the Minister of Conservation to your Official Information Act requests of 14 March 2004 and 12 May 2004.

As you will recall, by letter of 2 September 2004, I advised you of the provisional view that I had reached in this matter. That view was that section 18(e) of the Official Information Act (the Act) provided the Minister with grounds not to make further information available to you and was based on my being satisfied that all information relevant to the requests in question had been made available to you.

By letter of 14 September 2004, you provided me with a further submission, in which you argued that section 18(e) did not apply and "that there is relevant official information, most probably in non-recorded form, that has been withheld."

In your submission you asserted that the decision with regard to to the access arrangement for the Pike River Coal Company was not based on "the totality of evidence" presented to the Minister and that Mr Carter had given "no specific reasons" for his decision or what he had regard to.

I subsequently put your comments to the Minister and asked for his response to them. At the same time, I asked the Minister to provide me, from his memory, if necessary, the reasons for his consideration and weighting of section 61(2) of the Crown Minerals Act.

The Minister has responded to me in the following terms:

"I have read with Mr Johnson's submission to you. Mr Johnson has adopted the view that because each criterion in section 61(2) of the Crown Minerals Act is joined by the word "and", the starting point for its consideration, in the absence of reasons given by the decision-maker, would be equal weighting (paragraph 22). Mr Johnson, is of course, at liberty to read the legislation in any way he sees fit. I take the approach that had Parliament intended there to be equal weighting it would have said as much. Given the existence of paragraphs (d) and (e) I take the view that Parliament intended a decision-maker to be free to reach the view that those two criteria could, in appropriate circumstances, outweigh the preceding criteria.

Secondly, I do not accept the implication in paragraph 22, or subsequent assertions in Mr Johnson's submission that I have failed to give reasons. In particular, I do not agree with his comments on paragraph 27. There was ample evidence in both the conservancy mining report and the briefing paper to me on issues relating to partial safeguards and compensation, to justify my reaching the conclusions I reached.

In addition, I emphasised in my press release, dated 12 March 2004, that my approval was subject to the company and the department reaching agreement on terms and conditions of the access arrangement that were satisfactory to me. I noted that in that same press release that the mine was to be mostly underground with a small visual foot print above ground (compared to the scale of the protected landscape surrounding it).

Also, the land most impacted on was the stewardship land, with only small impacts on the neighbouring ecological area and Paparoa National Park. I indicated there were three major issues that I was most concerned about when considering the mining proposal. They were the potential subsidence, potential acid mine drainage, and the impacts of the proposed access route on both natural and recreational values.

I stated that "DOC has advised me that I can have reasonable confidence that the foreseeable adverse effects of subsidence will be manageable and can be partially safeguarded, so long as comprehensive conditions are strictly adhered to by the mining company." This advice was based on independent expert advice provided by the late Dr Lax Hola.

On the subject of acid mine drainage I asked for a further drilling programme to establish the nature and extent of likely acid mine drainage in coal mining operations. In my press release I said "Following these tests, aworld expert has provided technical advice stating that the risk of acid mine drainage is 'manageable and probably low'. I am now satisfied that the acid mine drainage problem is manageable provided all the management practices proposed by DOC are fully met, both during the course of the mine's operation and for a long period of time afterwards."

As for the impacts of the proposed acess route, I noted in my press statement that the access road would, for part of its length, follow an existing partly-formed road left over from the days when the area was logged. I also stated 'The advice to me has been that there will only be a very localised impact on the botanical values of the area that will not materially affect conservation values. The impact on native species will also be confined to a small area in a large habitat. I am informed that there are only two individual whio (sic) still alive in the Pike river catchment, both of which are male. Obviously, this is not a viable breeding population.

Once again, I will be ensuring that the best possible safeguards are in place to protect against significant damage to conservation values in the company's access arrangement Because thes effects can only be partially safeguarded, I have also sought compensation from the company.'

At paragraph 23 of his submission, Mr Johnson considers that the fifth matter,delaing with compensation, is equivocal. That is a matter of opinion. I have taken the view that the annual sum of $70,00 to be spent on conservation projects together with financial assurances of approximately $29 million (including public liability insurance) is of no small significance. I also noted that the company was proposing to rehabilitate an equivalent area of conservation land should its operations materially affect conservation values.

In short, I consider that there was more than sufficient information in the conservancy mining report and the department's briefing paper to me, to enable me to make the decisions I made. Reasons for my decision were adequately contained in both these documents and in the press release I released".

I have considered the Minister's response and this appears to me to set out in a reasonable mannerthe basis of the decisions that he made with regard to the Pike River Coal Company and the Access Arrangement. I appreciate that you do not agree with the Minister decisions and it is open to you to adopt that view

However, the Minister has set out his reasons for the decision that he made, and earlier an assurance that all of the information relevant to your requests, in written and in non written form, had been made available to you.

In view of that asurance and the latest response that I have received from the Minister I am satisfied that the obligations upon the Minister through the Act have been in the matter of his response to the Official Information Act requests in question.

Accordingly, I now confirm that it is my final view that all of the information held by the Minister and relevant to your Official Information Act requests have been made available to you and that section 18(e) of the Act applies and provides the Minister with grounds not to make further information available to you.

I appreciate that you will not be satisfied with the outcome of my investigation, but I have now discontinued it and propose to close my file on this complaint.

I shall write to you again when those considerations are completed.

Yours sincerely

Mel Smith
Ombudsman

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