Do landowners have to allow oil and gas activities on their property? No.
We have set out the rules around access to land and landowner rights more fully in the relevant law section below. However, in brief oil and gas is owned by the Crown however you own your land. The Crown Minerals Act 1991 governs the granting of permits to companies to explore for oil and gas.
Companies have to negotiate with landowners for access to their property. Access is not a right. Even if a company holds a permit a landowners can refuse access. Under the Crown Minerals Act you have the following rights:
- The right to have the all of the effects of the activity explained to you in full.
- The right to request further information and baseline environmental testing before activities begin.
- The right to request further conditions, including monitoring, buffer zones, times for access, type of access (ie the types of vehicles, how many and who are accessing your property and from where).
- The right to have legal representation during negotiations. NOTE: the company attempting to gain access to your property must pay your legal fees in negotiating access.
- The right to refuse access to your land altogether. If this happens, the company can ask that access to your property be determined by an arbitrator. Only with your consent can the arbitrator determine the access arrangement. If you refuse, the company must then ask the Governor General to review the matter and where access is seen as in “the public good” then the Governor General can give an arbitrator the right to determine the arrangement. We do not know of any case where this has happened yet.
Resource Management Act 1991
The Resource Management Act 1991 (“RMA”) is the primary legislation under which the environmental effects of activities are regulated in New Zealand. The RMA can be accessed online at www.legislation.govt.nz.
The purpose of the RMA is the sustainable management of natural and physical resources. This means:
managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well‐being and for their health and safety while—
- a) sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
- b) safeguarding the life‐supporting capacity of air, water, soil, and ecosystems; and
- c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.
The RMA is implemented through planning documents: regional policy statements, regional plans and district plans.
Regional Policy Statement
Taranaki Regional Council is required to prepare a regional policy statement. The purpose of a regional policy statement is to provide an overview of the resource management issues of the region and state policies and methods to achieve integrated management of the region’s natural and physical resources.
The Taranaki Regional Policy Statement was published in 2009. It sets out high‐level policy that must be implemented in regional and district plans. Chapter 13 of the Taranaki Regional Policy Statement addresses minerals and includes an objective; “provid[ing] for the use and development of the region’s mineral resources while avoiding, remedying or mitigating any adverse effects on the environment”, as well as policies and methods.
The Taranaki Regional Policy Statement is available online: www.trc.govt.nz/regional‐policy‐ statement/
Taranaki Regional Council is required to prepare a regional coastal plan and may prepare other regional plans to assist the regional council to carry out its functions under the RMA. The Taranaki Regional Council has published a Coastal Plan (1997), an Air Quality Plan (2011), a Soil Plan (2001), and a Fresh Water Plan (2001). Which regional plan(s) must be considered by a resource consent applicant depends on the nature of the activity. Many oil and gas activities require consent from Taranaki Regional Council for discharges to water, discharges to air, and other effects.
A District Council must prepare a district plan to assist the district council to carry out its functions under the RMA. District plans regulate the environmental effects of land use and development. They regulate issues such as the erection of structures, earthworks, hazardous substances, light, noise and traffic.
Crown Minerals Act
Any person may apply for a prospecting, exploration, or mining permit, this means that a person may apply for a permit in respect of land that person does not own. However, the grant of a permit does not give the permit holder a right of access to land. In order to enter land to carry out a minimum impact activity (which includes surveying and taking samples by handheld methods) a permit holder requires the written consent of each owner and occupier to enter the land to which the permit relates or have given the land owner 10 or more working days notice.
In order to enter land to carry out other activities the permit holder must enter into an access arrangement with each owner and occupier of the land.
If a person wishes to obtain an access arrangement they must serve notice on the owner and occupier of the land expressing their intention to seek an access agreement. The notice must specify the land, the purpose for which access is required, the proposed programme of work, the proposed compensation and safeguards against adverse effects, and the type of permit held.
If, sixty days after service of that notice, the person seeking access and the owners and occupiers of the land have been unable to agree on an access agreement the person seeking access may request the owners and occupiers of the land to agree to the appointment of an arbitrator. If the parties are unable to agree on the appointment of an arbitrator then either party may apply to the Chief Executive of the Ministry of Economic Development and request that he or she appoint an arbitrator.
If the owner or occupier of the land refuses to enter into an access arrangement, the person seeking access may apply to the Chief Executive of the Ministry of Economic Development for a declaration that an arbitrator may determine an access arrangement. The Chief Executive of the Ministry of Economic Development must report on the application the Minister of Energy. If the Minister of Energy considers that there are sufficient public interest grounds to support the application the Minister of Energy shall serve a notice on the owners and occupiers of the land containing:
- the application,
- the Minister’s preliminary views, and
- informing the owner and occupier of the land that they have 3 months to: enter into an access arrangement with the person seeking access, to agree to an arbitrator determining an access arrangement, or o make representations to the Minister as to why a declaration should not be made
If, after the 3 month period, the owner or occupier of land has not entered into an access arrangement or consented to an arbitrator, the Governor‐General, on the advice of the Minister of Energy and the Minister for the Environment, must determine whether it is in the public interest to declare that an arbitrator may determine an access arrangement.
The arbitrator must conduct a hearing and at the hearing a person seeking access and the owner and occupier of the land are entitled to appear and be heard and may be represented by a lawyer. The arbitrator then determines an access agreement, giving the person seeking access access to the land on “reasonable conditions”. The access arrangement must specify the compensation to which each owner or occupier is entitled. The owner and occupier of the land are entitled to compensation from the person seeking access for all injurious affection and all other loss or damage suffered as a result of the grant of the permit or by an access arrangement. This includes:
- reimbursement of costs incurred in negotiations,
- reimbursement of lost income,
- a sum by way of solatium for loss of privacy and amenities, and
- reimbursement of costs associated with ensuring compliance with and monitoring the access arrangement.
The owner and occupier of land’s costs in relation the hearing are borne by the person seeking access. THAT MEANS THE OIL AND GAS COMPANY SHOULD PAY.
The Crown Minerals Act provides that an arbitrator is not entitled to determine an access agreement to enable prospecting or exploration for, of mining of petroleum in respect of the following classes of land unless the parties agree:
- Land managed under the Conservation Act 1987
- Land subject to a QEII covenant
- Land subject to a Conservation Act 1987 or Reserves Act 1977 covenant
- Land for the time being under crop
- Land used as or situated within 30 metres of a yard, stockyard, garden, orchard, vineyard,plant nursery, farm plantation, shelterbelt, airstrip or indigenous forest
- Land which is the site of or situated within 30 metres of any building, cemetery, burial ground, waterworks, race or dam
- Land having an areas of 4.05 hectares or less If there is a dispute regarding whether any land falls within one of the above classes a party may apply to the District Court to determine the matter. An access arrangement is binding on the owner and occupier and all successors in title to the owner and occupier, provided that the particulars of the arrangement are noted on the title.
See sections 53 to 77 of the Crown Minerals Act 1991.
NOTIFICATION UNDER THE RMA
When a consent is required the consent authority must decide whether or not to notify the consent application. The consent authority may decide not to notify the application (“non‐notified”), notify affected persons (“limited notification”), or notify the general public (“public notification”).
There is no opportunity for public response to the application, often the local community will only become aware of the resource consent once it has been granted.
A consent application must be notified to affected persons if the consent authority decides that there are any affected persons, an affected protected customary rights group, or an affected customary marine title group.
A consent authority must decide that a person is an affected person if the activity’s adverse effects on the person are minor or more than minor. When carrying out this assessment the consent authority may disregard an effect of the activity if a rule in the plan permits an activity with that effect – this is known as the “permitted baseline”. A person is not an affected person if the person has given written approval to the activity and has not withdrawn their approval.
See sections 95B and 95E of the RMA.
A consent application must be publicly notified if the consent authority decides that the activity will have or is likely to have adverse effects on the environment which are more than minor, or, the applicant requests public notification of the application, or, a rule in a plan requires public notification of the application.
A consent authority also has a discretion to notify a consent application if special circumstances exist. These will include circumstances which make notification desirable, despite the general provisions excluding the need for notification. If the activity is specifically envisaged by the plan it cannot give rise to special circumstances.
When assessing the adverse effects of the activity on the environment the consent authority must disregard any effects on persons who own the land on which the activity will occur or adjacent land, any effect on a person who have given written approval to the activity, and any trade competition. The consent authority may also disregard the “permitted baseline”.
See sections 95A and 95D of the RMA.
There are no national standards for determining whether the adverse effects of an activity are minor. The assessment of whether an adverse effect is “minor” is one of fact and degree. It requires the exercise of discretion as to the degree of seriousness involved. It is at the lower end of the scale of major – moderate – minor, but is more than de minimus or negligible.
It is notable that the notification provisions refer to “adverse effects” only. Therefore the Council must not ‘balance’ adverse and beneficial effects when determining whether the adverse effects are minor and therefore whether or not an application should be notified. Beneficial effects are to be considered when the Council is determining whether or not to grant the consent sought.
Challenging a decision on notification
You may request the Council’s decision on notification. This will set out their reasons for deciding whether or not to notify a consent application. If you think the Council has incorrectly determined not to notify a resource consent application the only avenue for challenging this decision is through judicial review in the High Court. Judicial review is only available if the Council has misapplied the law. There is no opportunity to appeal the decision on the merits.