Summary
The Court of Appeal held that mine shafts could not be consented on an unformed ‘paper’ road on conservation land for gold mining operations.
Background
The Wharekirauponga Forest is conservation land in the Coromandel administered by the Department of Conservation (“DOC”).
Mining company Oceana Gold (New Zealand) Ltd obtained a crown minerals permit to explore for gold and silver underneath parts of the forest. The access arrangement with DOC did not cover access if gold and silver were discovered. Having discovered gold, instead of applying for the necessary access, Oceana Gold plans to construct a tunnel from private land underneath the forest to access the minerals. The tunnel needs ventilation and escape shafts. To surface in DOC land would require a DOC access arrangement.
Oceana Gold sought to circumvent this by asking the Hauraki District Council for a licence to surface the shafts on an unformed ‘paper road’ in the forest.
Paper roads are legal roads on survey plans and in law but without current formed surfaces to enable foot and vehicle traffic. They are typically found in rural areas, often running unmarked through farmland or bush. They are usually unused and indistinguishable from their surrounding environment. Local authorities own the paper road land under s 316 of the Local Government Act1 974 (“LGA 74”).
The ‘roads’ on which consent was granted to surface shafts were in remote dense bush. They were difficult to access on foot and impossible to access by vehicle.
In September 2021, the Council granted licences in the face of DOC opposition to construct and maintain the shafts on the road. The licence ran for 40 years. During the initial construction period, only 5 metres of the 30 metre width of the road would be passable. For the remainder of the term, the shafts would obstruct approximately 10 metres of the road. The Council included conditions requiring that the road not be completely obstructed, and that Oceana Gold remediate the obstruction at the end of the Licence term.
Ours Not Mines Ltd (“ONM”), a local environmental advocacy group, applied for judicial review, arguing that the Council could not use its statutory roading powers to grant a licence for a commercial purpose.
The High Court held that the Council’s power to grant the Licence arose from its common law ownership rights, and that granting the Licence was permissible as it did not result in an ‘appreciable interference’ with public access along the road.
ONM appealed to the Court of Appeal.
The case
Extent of local authority powers to licence obstructions to roads
The Court of Appeal agreed with the High Court that the Council's power to grant licences derived from ownership rights not statutory authority. Accordingly, ONM’s argument that the Council had exceeded its statutory powers failed.
However, ownership rights did not give the Council absolute power to deal with roads as it pleased. Local authorities held public roads on trust for the public to enable public access. Temporary obstructions could be authorised, but appreciable interferences with access rights created a public nuisance and were beyond the Council’s powers.
A court would assess whether an interference was appreciable based on contextual factors like the magnitude and duration of the disruption, and the nature, location, and use of the road. The same basic principle applied to busy city streets through to unformed paper roads through dense bush and other inhospitable terrain.
Appreciable interference with public access
The Council submitted that there was no appreciable interference caused by the structures because they were located in dense bush far away from other accessways, were completely inaccessible by vehicle and accessible only with difficulty by walkers.
These arguments were decisive in the High Court. However, the Court of Appeal took a different view, albeit claiming that the case was finely balanced.
The court considered the claim finely balanced but rejected the Council’s argument. The decisive factors were the magnitude and duration of the obstruction. Only 5 metres of the road would be unobstructed during the initial construction period. While the obstruction would diminish afterward, 10 metres of the road’s 30 metre width would be fenced off for the 40 year term of the Licence. While the road’s remoteness and infrequent use and the lack of any plans for formation were relevant context, the court emphasised that public rights of access were paramount on any land legally designated as a road.
Given the magnitude and duration of the interference in this case, the court held that the Licence appreciably interfered with the public’s right to access the road. Accordingly, the Licence was unlawful.
Result
The court granted the appeal.
The decision adopts a more stringent approach to maintaining public access rights than was adopted in the High Court.
It is possible that Oceana Gold’s motives for obtaining the Licence influenced the outcome. In parts of the judgment, the court was critical of Oceana Gold circumventing Conservation Act restrictions around mining on conservation land, although this did not determine application of the legal test for interference with paper . It remains to be seen whether the Council or Oceana Gold will appeal to the Supreme Court.
The Conservation Amendment Bill is currently before the Environment Committee and is due to be reported back to the House by 12 November 2026. Proposed amendments significantly expand the powers of the government to exchange or dispose of conservation land. If enacted, this change may facilitate mining projects and other economic developments on what is currently conservation land without the need for recourse to devices like paper roads.
For further information on this or similar cases please contact Director, Brigitte Morten
