Minimum impact activity
An access arrangement may not be necessary for minimum impact activity. A minimum impact activity is defined in section 2 of the Act. It includes sampling and surveying by hand-held means, aerial surveying and any activities that do not result in other than minimum scale impacts.
For minimum impact activities on essentially only rural land, a permit holder is not required to obtain formal landowner and occupier consent to a land access arrangement. Instead, the permit holder is required to give 10 working days notice of entry in the appropriate manner.
However there is special protection for certain classes of land. No person can enter land less than 4.05 hectares in size (which covers general urban/residential land), conservation land, crop land, gardens, orchards, or cemeteries to carry out a minimum impact activity without the consent of the owner and/or occupier of the land.
Other than minimum impact activity
For other than minimum impact activities, for example those that include cutting and removing vegetation, use of explosives, or significant earth works etc., the holder of a permit can only prospect, explore or mine in or on land to which the permit relates in accordance with an access arrangement with every landowner and occupier.
If an access arrangement cannot be reached, the permit holder may ask the landowner or occupier to agree to an arbitrator, but the landowner or occupier is not obliged to do this. In very rare cases the Governor General may declare, under section 66 of the Act, by Order in Council, that an arbitrator determine an access arrangement between the permit holder and the owner or occupier on the grounds of the public interest. Such an Order cannot be made over special categories of land including Maori land, conservation land, crop land, gardens, orchards, cemeteries and any land 4.05 hectares or less in size. No such Order has ever been granted to date.
As noted, the land access provisions provide special protection to Māori land as defined by Te Ture Whenua Māori Act 1993.
For minimum impact activities, before entering onto Māori land, in addition to providing 10 working days notice, a permit holder must ensure that reasonable efforts have been made to consult with the owners of the land as identified by the registrar of the Māori Land Court and 10 days notice must be given to the local iwi authority. If the Māori land is regarded as waahi tapu by the tangata whenua, access even for minimum impact activities can only be obtained if the Māori landowners give their consent.
For activities other than minimum impact activities, the owners of Māori land also have an absolute veto right on all mining activities on their land. There is an exemption for Māori land from access arrangements being determined by an arbitrator where there might otherwise be public interest grounds to support an access arrangement being negotiated.
The Crown Minerals Act 1991 provides for three types of permit, prospecting, exploration and mining. Prospecting permits allow for less intensive work programmes but section 28 of the Crown Minerals Act 1991 places a restriction when a prospecting permit should be granted.
How to apply section 28 of the Crown Minerals Act 1991 when dealing with prospecting permit applications can cause discussion and conflict. There is a balance to be maintained that meets the needs of the Crown, as a mineral owner on behalf of all New Zealanders, and the needs of the exploration company who is making an investment in the Crown Mineral Estate.
Crown Minerals Act 1991
Key parts of the Crown Minerals Act 1991 are:
(1) In this Act, unless the context otherwise requires, prospecting means any activity undertaken for the purpose of identifying land likely to contain mineral deposits or occurrences; and includes:
(a) Geological, geochemical, and geophysical surveys
(b) The taking of samples by hand or hand held methods
(c) Aerial surveys
(d) The taking of samples offshore by low-impact mechanical methods;
From the Crown Minerals Act 1991 reprinted Oct 2013
NB There is no definition of fossicking
exploration means any activity undertaken for the purpose of identifying mineral deposits or occurrences and evaluating the feasibility of mining particular deposits or occurrences of 1 or more minerals; and includes any drilling, dredging, or excavations (whether surface or subsurface) that are reasonably necessary to determine the nature and size of a mineral deposit or occurrence; and to explore has a corresponding meaning
exploration permit means an exploration permit granted under this Act
minimum impact activity means any of the following:
- (a) geological, geochemical, and geophysical surveying:
- (b) taking samples by hand or hand held methods:
- (ba) taking small samples offshore by low-impact mechanical methods:
- (c) aerial surveying:
- (d) land surveying:
- (e) any activity prescribed as a minimum impact activity:
- (f) any lawful act incidental to any activity to which paragraphs (a) to (e) relate—
to the extent that it does not involve any activity that results in impacts of greater than minimum scale and in no circumstances shall include activities involving—
- (g) the cutting, destroying, removing, or injury of any vegetation on greater than a minimum scale; or
- (h) the use of explosives; or
- (i) damage to improvements, stock, or chattels on any land; or
- (j) any breach of the provisions of this or any other Act, including provisions in relation to protected native plants, water, noise, and historic sites; or
- (k) the use of more persons for any particular activity than is reasonably necessary; or
- (l) any impacts prescribed as prohibited impacts; or
- (m) entry on land prescribed as prohibited land
- (a) means to take, win, or extract, by whatever means,—
- (i) a mineral existing in its natural state in land; or
- (ii) a chemical substance from a mineral existing in its natural state in land; and
- (b) includes—
- (i) the injection of petroleum into an underground gas storage facility; and
- (ii) the extraction of petroleum from an underground gas storage facility; but
- (c) does not include prospecting or exploration for a mineral or chemical substance referred to in paragraph (a)
- (a) means any activity undertaken for the purpose of identifying land likely to contain mineral deposits or occurrences; and
- (b) includes the following activities:
- (i) geological, geochemical, and geophysical surveying:
- (ii) aerial surveying:
- (iii) taking samples by hand or hand held methods:
- (iv) taking small samples offshore by low-impact mechanical methods
8 Restrictions on prospecting or exploring for, or mining, Crown owned minerals
- (1) No person may prospect or explore for, or mine, Crown owned minerals in land unless the person—
30. Rights to prospect, explore, mine
- (1) Subject to section 8, the holder of a current prospecting permit shall have a right to prospect for the mineral, in the land, and on the conditions, stated in the permit, whether the mineral is owned by the Crown or privately owned.
(2) Subject to section 8, the holder of a current exploration permit shall have the rights of a holder of a current prospecting permit and, in addition, a right to explore for the Crown owned mineral, in the land, and on the conditions, stated in the permit.
(3) Subject to section 8 and subsections (4) and (5), the holder of a mining permit shall have the rights of a holder of a current exploration permit and, in addition, a right to mine the Crown owned mineral, in the land, and on the conditions, stated in the permit.
(4) Where a mining permit states that the right to mine only applies to a
Access to land
47 Permit does not give right of access to land
- Subject to section 49, the granting of a permit under this Part does not confer on the permit holder a right of access to any land.
Access to land for minimum impact activity
49 Entry on land for minimum impact activity
- (1) Notwithstanding section 8, but subject to sections 50, 51, and 62, any person employed by the Crown and authorised either specially or generally for that purpose, and any person authorised specifically in writing by the Minister for that purpose, may during the daytime enter on any land, with such assistance as he or she thinks fit, and carry out minimum impact activity.
(2) Subject to sections 8, 50, 51, and 62, a permit holder (and employees, agents, and contractors of a permit holder authorised for that purpose) may enter land to which the permit relates and carry out minimum impact activity.
(3) Notwithstanding subsections (1) and (2), no person may enter on land under either of those subsections without the written consent of each owner and occupier, and any customary marine title group unless at least 10 working days’ notice has been given to each person or group whose consent is required of—
- (a) the date of intended entry; and
- (b) the type and duration of work to be carried out; and
- (c) a telephone number in New Zealand of the person who intends to enter the land.
(4) Every person who enters land under this section shall, if required by any owner or occupier or customary marine title group to do so, produce a copy of the authorisation or permit which gives the right of entry under this section.
(5) A person who enters land under this section shall not carry out any activity other than a minimum impact activity.
Permit holder may obtain order
- Where a permit holder or other person authorised to enter on land under section 49 has complied with the requirements of that section and, in the exercise of his or her rights under that section, is obstructed, hindered, or interfered with by an owner or occupier of the land, or any other person, the permit holder or person so authorised may apply to a District Court for an order directing that he or she or any other person having rights under section 49 be permitted to exercise those rights.
Access to land for minerals other than petroleum
- (1) This section shall not apply to minimum impact activities.
(2) The holder of a permit in respect of a mineral (other than petroleum) shall not prospect, explore, or mine in land to which his or her permit relates otherwise than in accordance with an access arrangement—
- (a) agreed in writing between the permit holder and each owner and occupier of the land; or
- (b) determined by an arbitrator in accordance with this Act.
(3) Subsection (2) does not apply if the permit relates to—
- (a) land in the continental shelf; or
- (b) land in the common marine and coastal area, but if the permit relates to land described in Schedule 4, the permit holder may exercise the permit only—
- (i) in respect of land that is not subject to a customary marine title order or agreement; and
- (ii) in accordance with an access arrangement agreed in writing between the permit holder and the appropriate Minister in relation to an activity set out in section 61(1A)(a) to (e).
- (a) will not or is not likely to cause any damage to the surface of the land or any loss or damage to the owner or occupier of the land; or
- (b) will not or is not likely to have any prejudicial effect in respect of the use and enjoyment of the land by the owner or occupier of the land; or
- (c) will not or is not likely to have any prejudicial effect in respect of any possible future use of the surface of the land.
Meaning of entry on land
- For the purposes of sections 53 and 54, prospecting, exploration, or mining carried out below the surface of any land shall not constitute prospecting, exploration, or mining on or in land if it—
Notice of request for grant of right of access
- (1) Every person wishing to obtain an access arrangement in order to prospect, explore, or mine on or in land shall serve on each owner and occupier of the relevant land a notice in writing of that person’s intention to obtain an access arrangement.
(2) Every notice under subsection (1) shall, in addition to matters required by regulations, specify—
- (a) the land affected; and
- (b) the purpose for which the right of access is required; and
- (c) the proposed programme of work including the type and duration of work to be carried out and the likely adverse effect on the land or the owner or occupier of the land; and
- (d) the compensation and safeguards against any likely adverse effects proposed; and
- (e) the type of permit held or applied for by the person giving the notice; and
- (f) if the notice relates to access to Crown land or land in the common marine and coastal area, the direct net economic and other benefits of the proposed activity in relation to which the access arrangement is sought.
(3) Where an access arrangement is obtained by way of agreement, and the requirements of this section were not complied with in a material way, then such agreement shall be of no force or effect unless the non-compliance is waived in writing by the owner or occupier affected.
98 Gold fossicking areas (Crown land)
- (1) The appropriate Minister and the Minister may, by notice in the Gazette, jointly designate any area of Crown land as a gold fossicking area, which shall then be open for public fossicking in respect of gold.
(2) The area and location of every gold fossicking area declared under subsection (1) shall be defined in the notice under that subsection.
(3) Every person shall have the right to mine for gold in a gold fossicking area by means only of non-motorised hand held tools.
(4) The designation of an area of land as a gold fossicking area does not prevent or restrict the granting of any permit in respect of that area.
(5) The Minister may, by notice in the Gazette, revoke any designation of a gold fossicking area.
98A Gold fossicking areas (other land)
- (1) The Minister may, by notice in the Gazette given on the request of a local authority, designate any land owned by the authority as a gold fossicking area.
(2) The notice must—
- (a) state that the area is open for public fossicking in respect of gold; and
- (b) specify the area and its general location; and
- (c) state that a person has the right to mine for gold in the area by means only of non-motorised hand held tools; and
- (d) state any other terms or conditions that apply when a person is fossicking in the area (as agreed between the Minister and the owner of the land).
(3) The Minister must revoke a designation made under subsection (1) if requested to do so by the authority.