March 2014 Māori Law Review
David Randal and Julia White from Buddle Findlay’s environment and Māori law team review natural resource management law affecting Māori in 2013.
2013 featured a number of cases grappling with the perennial issue of how to reconcile infrastructure and other developments, on the one hand, with providing for the relationship of tangata whenua with significant sites on the other.
This article summarises key decisions from 2013 under the Resource Management Act 1991 ("RMA") and the Historic Places Act 1993 ("HPA"), looks at further developments in relation to natural resources in the context of Treaty settlements of historical claims, and notes a number of ongoing topics to monitor as 2014 unfolds.
Decisions under the Resource Management Act
Heybridge Developments v Bay of Plenty Regional Council  NZEnvC 269
Download Heybridge Developments v Bay of Plenty Regional Council  NZEnvC 269 here.
Section 6(e) of the RMA requires decision-makers to recognise and provide for "the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga", as a matter of national importance.
At issue in Heybridge was the nature and degree of evidence required to trigger s 6(e); in particular, the case considered whether an honestly held belief that an ancestor may be buried within a site, supported by credible evidence, was enough to establish a relationship for the purposes of that provision.
In 2007 the Bay of Plenty Regional Council declined consent to subdivide Heybridge's 44-hectare site because, among other reasons, earthworks would adversely affect the relationship of Pirirakau with Tahataharoa, a wider area of ancestral land which includes the site believed by Pirirakau to be the burial place of Tutereinga, their eponymous ancestor.
Heybridge appealed to the Environment Court, without success. On further appeal, however, the High Court (Heybridge Developments Ltd v Bay of Plenty Regional Council (2011) 16 ELRNZ 593; HC TAU CIV-2010-470-585 19 August 2011) accepted Heybridge's submission that:
If Pirirakau alleged that s 6(e) required the Court to recognise and provide for Pirirakau's relationship with the site on the basis of waahi tapu, it was for Pirirakau to establish the existence of waahi tapu. It was not for Pirirakau simply to assert a belief and for the appellant to be required to disprove it.
Peters J expressed the view that "a party who asserts a fact bears the evidential onus of establishing that fact by adducing sufficiently probative evidence. The existence of a fact is not established by an honest belief. I am satisfied that the Court erred as a matter of law in this respect". The case was remitted back to the Environment Court for reconsideration.
In the ensuing Environment Court proceeding, all counsel agreed that the High Court had not determined "whether section 6(e) extended to recognition and provision of a relationship between Pirirakau and their culture and traditions with Tahataharoa based predominantly on a belief. Rather, it was for the Environment Court to reconsider if and how the relationship of Pirirakau with the site should be provided for under section 6(e)".
After reviewing the authorities, the Environment Court held that there is "no authority for the blanket proposition that a relationship under s 6(e) could not be based on an honest belief. Rather (…) the cases demonstrate that "oral assertions of a belief supported by consistent and credible evidence tending to corroborate the authenticity of the belief" can sustain a relationship for the purposes of section 6(e) of the RMA."
The Environment Court concluded that there was sufficient evidence, based on Pirirakau's honest belief and supported by evidence of oral traditions, to establish a relationship with the site in s 6(e) terms.
That finding did not lead the Court to uphold its previous decision and decline consent, however. Rather, based on evidence that the burial site could be anywhere within the wider Tahataharoa area, a majority of the members of the Court held that the development could proceed (under appropriate conditions) as there was a sufficiently low probability of the burial site being disturbed.
Verstraete v Far North District Council  NZEnvC 108
Download Verstraete v Far North District Council  NZEnvC 108 here.
The Council had declined consent for the Verstraetes to construct a dwelling that breached visual amenity and earthworks provisions of the district plan, on the slopes of a prominent hill known as Rangitane or Waitete.
While one local hapū (Ngāti Rehia) had no issue with the proposal to build above a certain height plane, another (Ngāti Mau) considered that to do so would detrimentally affect its relationship with Rangitane, which is considered to be a wāhi tapu and taonga of the hapū.
The Environment Court, on appeal, heard expert cultural evidence (including that of a witness not from the area) about the competing traditional interests in the hill, the nature of Māori relationships with it – including whether the hill was a taonga or a wāhi tapu – and the effects of the development on those relationships.
While finding it unnecessary to determine which hapū held mana whenua over the site, the Court analysed the expert cultural evidence and found there was insufficient evidence to support the claim by Ngāti Mau that the summit of Rangitane is a taonga or a wāhi tapu. The Court therefore granted the application, on the basis that it would not adversely affect a site of cultural significance to Māori.
Ngā Hapū o Poutama v Taranaki Regional Council & Anor  NZEnvC 254
Download Ngā Hapū o Poutama v Taranaki Regional Council & Anor  NZEnvC 254 here.
This case involved an appeal to the Environment Court by Ngā Hapū o Poutama against a decision of the Taranaki Regional Council to grant the New Zealand Transport Agency resource consent to remediate or reconstruct a length of embankment above the Tongaporutu Estuary on State Highway 3.
Ngā Hapū o Poutama contended that those works would adversely affect a wāhi tapu comprising parts of the Tongaporutu River, a tauranga waka adjacent to the proposed works, and a nearby ancestral pā and related urupā.
There was no dispute about the existence of the wāhi tapu, but on the evidence the Court considered that the adverse effects on the site were not of such a nature or level that the works should be disallowed. Nor did the Court agree with the appellant that there was a credible alternative to the works. The Court therefore upheld the Council's grant of consent.
One aspect of the case that the Court found "highly concerning" was what it described as a "demand [by Ngā Hapū o Poutama] for payment of $100,000 for NZTA having received the benefit of advice from Poutama during consultation". "If parties entering into consultation in good faith are to be confronted with demands of that sort", the Court observed, "they might reasonably be reluctant to commence the process in the first place."
Decisions under the Historic Places Act
Waikanae Christian Holiday Park Inc v New Zealand Historic Places Trust Māori Heritage Council & Anor  NZHC 2319, 6 September 2013
This case was reported in the October 2013 edition of the Māori Law Review ((2013) October Māori LR 8-10).
In short, a landowner (Waikanae Christian Holiday Park Inc) took umbrage at a decision by the Māori Heritage Council of the New Zealand Historic Places Trust / Pouhere Taonga to extend, on application by tangata whenua, the boundaries of an area registered as a wāhi tapu.
The High Court dismissed the judicial review application, however, on the grounds that there was nothing to suggest that the decision-maker had acted outside its statutory powers or failed to follow proper processes when reaching its decision.
Ngāti Uru Hapū v New Zealand Historic Places Trust Pouhere Taonga  NZEnvC 22
Download Ngāti Uru Hapū v New Zealand Historic Places Trust Pouhere Taonga  NZEnvC 22 here.
Ngāti Uru appealed the grant by the Trust of a general authority, under section 14 of the HPA, allowing the applicant (Mr Cook) to destroy or modify archaeological sites in constructing an access track.
The Environment Court acknowledged the underlying concerns of Ngāti Uru about potential effects on sites of significance, but noted that there were "serious disputes" between the experts as to the actual nature and location of many of them.
The Court imposed as a condition on the authority a protocol, largely agreed between the parties, providing for monitoring of the works by tangata whenua and setting out operational procedures and communications requirements.
The Court was satisfied that the authority, in light of the protocol condition, met the tests under ss 12 and 14(2) of the HPA, and that granting it on appropriate conditions would duly provide for the relationship of Māori with their sites (as well as the values of the known sites).
Ngāti Rāhiri Hapū o Te Atiawa (Taranaki) Society Inc v New Zealand Historic Places Trust  NZHC 2746
Similarly, this case (reported in the November 2013 issue of the Māori Law Review ((2013) November Māori LR 1-5)) concerned an appeal against a decision of the Historic Places Trust to grant a s 14 general authority, in this instance to Todd Taranaki Limited, relating to construction of a gas pipeline in the Tikorangi district.
The project works themselves were not opposed by tangata whenua; rather, the appellant hapū (Ngāti Rāhiri) took issue with two conditions on the authority, that:
- any archaeological work must be undertaken in conformity with tikanga Māori protocols agreed to by Todd and Ngāti Rāhiri and Otaraua (another hapū of Te Atiawa); and
- if any koiwi are encountered, Ngāti Rāhiri and Otaraua (among others) must be advised immediately.
An initial appeal by Ngāti Rāhiri to the Environment Court was unsuccessful, but resulted in words being added to the relevant conditions to clarify that the Trust had no view as to the mana whenua status of either hapū.
Ngāti Rāhiri appealed further to the High Court, again unsuccessfully. The Court held that the HPA does not require the Trust to assess the relationships of Māori with their ancestral lands so as to determine and accord precedence between claimed interests.
Te Puna Mātauranga o Whanganui v Wanganui District Council  NZEnvC 110
Download Te Puna Mātauranga o Whanganui v Wanganui District Council  NZEnvC 110 here.
This case concerned an application by Universal College of Learning and Te Puna Mātauranga o Whanganui for consent to demolish a building that had formerly housed the Māori Land Court, and to establish and operate an iwi tertiary institute on the site.
An earlier decision of the Environment Court (Universal College of Learning v Wanganui DC  NZEnvC 291) had declined consent to demolish the heritage building, which was built in 1922 and was listed in 2008 as a Category 1 Historic Place by the Historic Places Trust. At the time of that decision there was uncertainty about the applicants' plans to replace it with another building.
Perhaps because of that history, the renewed application was not determined at first instance by the Council, but rather was referred directly to the Environment Court under s 87G of the RMA.
The evidence put forward by the applicants to support demolition of the building included that it had negative connotations for Māori, as it had housed the Native Land Court from the 1860s until the 1920s and thus symbolised the conversion of customary tenure into individual freehold titles, thereby facilitating the alienation of very significant areas of land from Māori ownership.
The evidence put before the Court by opponents to the development also included considerable discussion about the ability of the exterior of the building to be retained and incorporated into a modified proposal.
In considering the positive and adverse effects of the proposal, the Court acknowledged the obvious cultural and other benefits that the iwi tertiary institute would bring, but declined the application because it would not accord with the requirement in section 6(f) of the RMA to provide for the protection of historic heritage from inappropriate development.
It is clear from the decision that the Court's focus was drawn to the prospects of an alternative development – involving retaining aspects of the heritage building and adapting it for the intended use – and that the Court favoured that alternative over the works proposed by the applicants. The Court accepted that the applicants would have to pay a premium to retain and adapt the building, and observed that "that is the all but inevitable consequence of recognising and providing for ... the protection of historic heritage from inappropriate ... use and development."
As for the applicants' argument that negative connotations with the building diminished its heritage values, the Court held that "we would require much stronger and direct evidence about such sentiment as a basis for rational decision making, and no authority has been cited to justify such an approach."
It remains to be seen whether the applicants will seek consent for the revised proposal favoured by the Court.
Treaty settlements of historical claims – developments in relation to natural resources
2013 was another busy year for the Crown and claimant groups, with deeds of settlement signed by Tūhoe, Ngāti Haua, Maungaharuru-Tangitu Hapū, Ngāti Tama ki Te Tau Ihu, Ngāti Rārua, and Ngāti Pūkenga. (See the review of Treaty settlement legislation before the House of Representatives in 2013: (2013) December Māori LR 8-27.)
The signing ceremony between the Crown and Ngāti Tama ki Te Tau Ihu at Onetahua Marae in Golden Bay marked the final deed of settlement for historical claims in the South Island.
Several associated settlement bills were also introduced to Parliament. The House of Representatives sat through extended hours in October to pass the Te Urewera-Tūhoe Bill, Ngāti Haua Claims Settlement Bill and Ngāti Koroki Kahukura Claims Settlement Bill through their first readings.
Frameworks for co-management of natural resources continue to form an important part of the redress negotiated by iwi and the Crown. The Tūhoe settlement will create a legal identity for Te Urewera itself and establishes a governance board, comprising Crown and Tūhoe representatives, to manage and protect the interests of Te Urewera. In the context of the Tapuika settlement, the Kaituna River Authority – Te Maru o Kaituna – is a co-governance entity to be established with the purpose of restoring, protecting, and enhancing the health of that river. Discussions between the Crown and iwi Māori continue on other significant natural resource settlements, including the Whanganui River negotiations.
Watch this space …
A broad range of ongoing litigation and regulatory developments with the potential to affect Māori progressed during 2013 and will continue to generate discussion throughout 2014 (and beyond, in many cases). Here is just a small selection.
- The Waitangi Tribunal's Freshwater and Geothermal Resources Inquiry, and associated litigation: Readers will recall the Tribunal's recommendations, from Stage One of its inquiry, that the Government's partial privatisation programme be delayed so the parties could explore measures to provide for Māori interests in water, and the subsequent High Court and Supreme Court decisions that effectively allowed that programme to proceed. The sole issue for determination by the Tribunal in Stage Two of its Inquiry is "What further reforms need to be implemented by the Crown in order to ensure that Māori rights and interests in specific water resources as found by the Tribunal at Stage One are not limited to a greater extent than can be justified in terms of the Treaty?" The Crown has indicated that it will provide further information on its proposed reform programme in this area in July 2014.
- The urgent Waitangi Tribunal inquiry into the grounding of the MV Rena: In the face of a Government announcement in 2013 that the overall resources allocated to the Rena Long-Term Environmental Recovery Plan would be reduced, the Waitangi Tribunal granted urgency to the claim of Ngāi Te Hapū, of Mōtītī Island, who are seeking removal of the wreck from Astrolabe Reef.
- The first marine consent applications under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 will be processed this year by the Environmental Protection Authority. In considering applications, the EPA must take into account any effects on the environment or existing interests of allowing the activity, including on interests a person has in historical Treaty settlements, contemporary settlements (including the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992), and a protected customary right or customary marine title recognised under the Marine and Coastal Area (Takutai Moana) Act 2011.
- A potential Tribunal claim in respect of the value of carbon credits: Māori leaders have voiced concerns over the way in which New Zealand's carbon credit value is jeopardising Māori forestry ventures. The carbon credit values have dropped considerably, to 14 cents per tonne in January (from earlier forecasts of $25 per tonne).
See the March 2013 issue of the Māori Law Review for the 2012 review of Māori interests in natural resource management ((2013) March Māori LR 9-13.)