March 2015 Māori Law Review
Thaddeus Ryan and Annie O'Connor from Buddle Findlay’s environment and Māori law team review natural resource management law affecting Māori in 2014.
As in previous years, in 2014 the Courts made a number of decisions concerning the recognition of Māori interests under the Resource Management Act 1991 ("RMA") and in related processes.
This article summarises key court decisions from 2014 (and the start of 2015), considers some novel features of Treaty settlement legislation that are of interest in terms of the management of natural resources, and sets out ongoing topics likely to be considered through 2015 and into 2016.
The treatment by the Courts of evidence and evidential thresholds in respect of the relationship of Māori with land and the existence and location of wāhi tapu continues to be a key theme.
Review of Court decisions
Pirirakau Inc Society v Bay of Plenty Regional Council (appeal against Heybridge Developments)  NZHC 2544
Download Pirirakau Inc Society v Bay of Plenty Regional Council  NZHC 2544 here.
Our review of 2013 case law considered the Environment Court's decision in Heybridge Developments v Bay of Plenty Regional Council  NZEnvC 269. (See (2014) March Māori LR.)
A 2007 Bay of Plenty Regional Council decision declined consent to subdivide Heybridge's 44-hectare site for reasons including that earthworks would adversely affect the relationship of Pirirakau (a hapū of Ngāti Ranginui) 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). That decision had been appealed first to the Environment Court, and then to the High Court, which had in turn remitted the case back to the Environment Court for further consideration.
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, wāhi tapu and other taonga" as a matter of national importance.
The appeals concerned the evidential threshold that Pirirakau needed to pass in order to demonstrate that it had a relationship with Tahataharoa that triggered section 6(e), thereby requiring the Court to recognise and provide for that relationship in its decision on the resource consent applications.
In Heybridge, the Environment Court had concluded that there is "no authority for the blanket proposition that a relationship under s6(e) could not be based on an honest belief" and that there was sufficient evidence based on Pirirakau's honest belief and oral traditions to establish a relationship with the site in terms of section 6(e).
However, based on a statement for Pirirakau at the 2013 hearing that the burial site could be anywhere within the wider Tahataharoa area, a majority of the members of the Environment Court held that the development could proceed, as there was a sufficiently low probability of the burial site being disturbed.
The decision to grant consent was subsequently appealed to the High Court. The appeal turned on the treatment of the 2013 statement for Pirirakau and its influence on the Environment Court's decision to grant consent. In allowing the appeal and refusing consent, the High Court found that:
- the Environment Court erred in concluding that there was a change of position by Pirirakau in respect to its relationship with Tahataharoa between the 2009 and 2013 hearings;
- the Environment Court placed too much weight on an oral statement made at the 2013 hearing and gave insufficient weight to the evidence presented at the 2009 hearing;
- the result of that error was that it made adverse findings from the oral statement that were not reasonably open to it, having regard to previous evidence; and
- because the Environment Court stated that it would have declined the resource consents had it not been for the 2013 oral statement, and because there was an error in its assessment of that evidence, the matter should be remitted back to the Environment Court for reconsideration.
Whether the subsequent Environment Court decision (which is yet to be made) will be the last in this long chain of cases remains to be seen.
Hamilton (for Te Uri Karaka Hapu) v Far North District Council  NZEnvC 12
Download Hamilton (for Te Uri Karaka Hapu) v Far North District Council  NZEnvC 12 here.
In contrast to the Court's treatment of evidence in respect of the relationship of Māori with ancestral land in Heybridge and Pirirakau, in Hamilton the Court found that the evidence was not sufficient to determine the precise location of a wāhi tapu.
Mr Hamilton (on behalf of the hapū) appealed against resource consents granted for the construction of a single house on a sandspit and wetland near Russell. Mr Hamilton argued that the Opanui wāhi tapu (the existence of which was accepted by all sides) was located on or included the development site, and that the development would have unacceptable effects on the wāhi tapu.
A resource consent application could potentially be refused on the basis that it would have adverse effects on a wāhi tapu, particularly in light of section 6(e) of the RMA.
After considering the evidence presented, the Court concluded that it was not clear whether the Opanui wāhi tapu was located on the development site, or was instead located somewhere else nearby.
The Court reiterated that the general essential approach to making a finding of fact also applied in respect of determining the existence and location of a wāhi tapu. Applying the Environment Court decision in Winstone Aggregates and the 2011 High Court decision in Heybridge, the Court upheld the grant of resource consents on the basis that there was insufficient probative evidence to establish on the balance of probabilities that there was a wāhi tapu on the development site that would likely be adversely affected by the proposed development. The honest belief of Mr Hamilton as to the location of the wāhi tapu was not sufficient.
Te Tumu Landowners Group and Others v Tauranga City Council  NZEnvC 38
Download Te Tumu Landowners Group and Others v Tauranga City Council  NZEnvC 38 here.
In Te Tumu, the Court considered evidence in respect of the relationship of Māori with ancestral lands and wāhi tapu in the context of planning overlays. Planning overlays can in turn be an important factor in the consideration of applications for resource consent.
The Court was asked to determine whether an area of land at the mouth of the Kaituna River should have planning overlays as a Significant Māori Area ("SMA") and / or an Archaeological Management Area ("AMA"); and if so what the extent of the overlay(s) should be.
The issue turned largely on the location and extent of the Te Tumu Fighting Pa (1832 – 1836) which was of significance to Bay of Plenty Māori.
The Court was satisfied on the evidence as to the general location of the pā and its surrounding area. The Court was also satisfied that the area met both the SMA and AMA thresholds. In particular, the area remained relatively intact – it was not necessary that the area should be pristine or undeveloped. The site may have been subject to change, but remained significant to Bay of Plenty hapū and iwi, and was also of archaeological significance. There was no reason why an area could not be given both overlays.
As an "interim" step the Court concluded that the two overlays should cover the same area. Further studies in the context of potential development of the land could lead to the areas being refined in future.
The Court indicated that the inclusion of the area in reserves or parks would enable the Council to meet its obligations to Māori under Part 2 of the RMA (and in particular section 6(e)), but that this was a consideration for the Council.
The Court also held that it would not be appropriate for an SMA or AMA to be identified with a "dot" or star in the District Plan – unless the area was so small that it could not be spatially represented on the plan maps. SMAs and AMAs are intended to be "areas" and should be marked as such.
Mahanga E Tu Incorporated v Hawkes Bay Regional Council  NZEnvC 83
Download Mahanga E Tu Incorporated v Hawkes Bay Regional Council  NZEnvC 83 here.
This was an appeal against the granting of resource consent for a proposed residential subdivision at Mahanga Beach, based on the Council's alleged failure to give effect to part 2 of the RMA (including section 6(e)).
Mahanga E Tu argued that the development impinged upon Māori cultural values. This was based on concerns regarding the effect of the proposed earthworks on a stream that runs through the subject site; the effect on the nearby Pāpaka urupā, and the fact that the site was historically occupied by Māori.
The Court found that, as there were no works proposed actually in the bed of, or within the banks of the stream, there was no need to resolve the issue of significance of the stream to local Māori. The urupā was, however, an important consideration for the Court. Expert evidence was given suggesting that the urupā may have extended into the legal boundaries of the subject site, but there was no consensus on this point and the exact location could not be confirmed.
Regardless of the location of the urupā, the Court noted that the subject site had clearly been historically occupied by Māori, and as a result Ngāi Tū had an ancestral relationship and association with the subject site for the purposes of section 6(e).
In this case, though, the Court held that the conditions of consent imposing "accidental discovery" protocols in respect of wāhi tapu and archaeological remains were sufficient to address any potential adverse effects on the wāhi tapu and the relationship of Māori to the site, thereby satisfying the requirements of section 6(e) (and Part 2 of the RMA more broadly).
Waikanae Christian Holiday Park Inc v New Zealand Historic Places Trust Māori Heritage Council and Takamore Trustees  NZCA 23
Download Waikanae Christian Holiday Park Inc v New Zealand Historic Places Trust Māori Heritage Council and Takamore Trustees  NZCA 23 here.
In Waikanae Christian Holiday Park, the Court of Appeal dealt with wāhi tapu in a different context – the registration by the Māori Heritage Council of a wāhi tapu area under the New Zealand Historic Places Act 1993 ("HPA"). The registration of a wāhi tapu area can be a relevant factor in RMA decision-making and plan making processes. As discussed below, the HPA has now been replaced by the Heritage New Zealand Pouhere Taonga Act 2014.
The Māori Heritage Council had received an application from the Takamore Trustees to significantly extend an already registered wāhi tapu area. The Council determined that there was sufficient evidence to formally initiate a review of the wāhi tapu area's boundaries. The Holiday Park was subsequently notified of the application as landowners of the area affected and invited to make submissions on the application.
Having received written submissions on the application (including from the Holiday Park), and considering a further expert report it commissioned, and the report of Council staff, the Council resolved to grant the extension to the wāhi tapu area sought by the Trustees.
The Holiday Park sought judicial review of the Council's decision, arguing that the process it followed had been flawed. The High Court refused the application for judicial review. On appeal the Court of Appeal upheld the High Court's decision in all respects, and found that the process followed by the Council had been appropriate.
Of particular interest was the Court's finding that the effect of registration on the landowner and in particular on land value is not a relevant consideration for the Council when determining applications under the HPA. The Court referred to the HPA's "single focus … to promote the identification, protection and conservation of the historical and cultural heritage in New Zealand."
The HPA has now been replaced by the Heritage New Zealand Pouhere Taonga Act 2014. The 2014 Act largely follows the provisions of the 1993 Act in respect of wāhi tapu area applications, and continues the Council and its roles and functions.
However, the Council is now required to "recognise the interests of the owner of the land" when making decisions. It is yet to be seen how the Courts will interpret that requirement, but it does seem that the intention is that consequences of registration for a landowner – including land value - will now need to be part of the Council's overall decision-making balance.
KPF Investments Ltd v Marlborough District Council  NZEnvC 152
Download KPF Investments Ltd v Marlborough District Council  NZEnvC 152 here.
In KPF Investments, the Environment Court refused resource consents for a salmon farming operation in part because of cultural effects of concern to tangata whenua.
KPF applied for resource consent in order to convert a section of an existing mussel farm for the farming of salmon. The site in question is located at the entrance to Port Ligar in the Pelorus Sound. Ngāti Koata opposed the application.
The Court recognised the role of tangata whenua as kaitiaki, and took into account the concerns held by Ngāti Koata that the effect the proposed salmon farm would have on the sea floor would be culturally offensive and would harm the mauri of the water. When considered alongside the four previously approved New Zealand King Salmon salmon farms in the area, the Court found that the addition of a fifth farm would have grave adverse effects on the values and mana moana of Ngāti Koata.
This consideration, as well the likely adverse effects on the Area of Outstanding Landscape Value in which the site sits, led the Court to the conclusion that consent should be refused, including on the basis that it would not be in accordance with section 6(e) of the RMA.
In applying section 6(e), the Court set out that the pertinent question "is not whether the court considers the subject matter is offensive or objectionable but whether the tangata whenua claiming to be affected are being reasonable in the circumstances when they say a proposed activity is offensive to their values."
Whangaroa Maritime Recreational Park Steering Group v Northland Regional Council  NZEnvC 92
Download Whangaroa Maritime Recreational Park Steering Group v Northland Regional Council  NZEnvC 92 here.
In another marine farm consent application case, the Whangaroa Maritime Recreational Steering Group opposed the granting of consent on a number of grounds.
The Court found that the potential positive effects on employment and economy in the area were significant considerations. This was particularly so in light of Northland's employment rate, which is currently the lowest in New Zealand. The Court's decision highlighted the agreement between the applicant and the Ririwha Ahu Whenua Trust (which administers Stephenson Island on behalf of approximately 500 beneficial owners) to operate the marine farm as a 50/50 joint venture. The Court accepted the Trust's evidence that it would benefit from the proposal by gaining specialised knowledge in marine farming and by providing the Trust the financial support necessary to carry out the ecological restoration projects required of it as kaitiaki of the Island.
The Court also considered the relevant plan provisions, finding that the proposal was consistent with policies that required recognition of the role of tangata whenua as kaitiaki, incorporation of mātauranga Māori into decision-making on resource consent applications and the avoidance of adverse effects on cultural heritage and sites of special significance to Māori. The Court concluded that, overall, any negative effects were not significant enough to justify refusal of consent when weighed against the benefit the proposal would bring to the Northland community.
Ngāti Mākino Heritage Trust v Bay of Plenty Regional Council  NZEnvC 25
Download Ngāti Mākino Heritage Trust v Bay of Plenty Regional Council  NZEnvC 25 here.
This decision related to several outstanding concerns of Ngāti Mākino regarding the freshwater provisions of the proposed Bay of Plenty Regional Policy Statement ("RPS"). The Environment Court summarised the outstanding concerns at issue in this case as "the desire for the RPS to more precisely articulate the recognition of Māori values and participation in providing directions for the management of fresh water".
The Court found that the Waitahanui River is a taonga of Ngāti Mākino and that particular sensitivity must be had to this relationship in preparing documents which affect the river. However, the Court noted that the question of what the most appropriate mechanisms are to recognise Ngāti Mākino's relationship with the Waitahanui River should be addressed by the Regional Water Plan, rather than the RPS. In terms of the RPS, the Court stated that its role was to ensure that the RPS properly recognises the role of Māori in both the development of policy at the plan level and in water allocation. A number of amendments were made to the RPS by the Court to achieve these outcomes.
Ellis v Minister of Education  NZEnvC 109
Download Ellis v Minister of Education  NZEnvC 109 here.
This decision concerned an appeal against a decision to confirm a Notice of Requirement for a designation by the Minister of Education ("the Minister") to enable the construction of a kura kaupapa and a wharekura at Koatu Point on the Hokianga Harbour.
This was opposed by Ms Ellis, who argued (among other things) that there had been a lack of consultation by the Ministry, in breach of section 8 of the RMA, and that any consultation that did occur had not properly followed tikanga. Section 8 of the RMA sits within Part 2, and provides:
"In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi)."
The Environment Court found that the Minister did not have a specific obligation to carry out consultation in regard to a Notice of Requirement. In any event, the Court considered that consultation had in fact occurred with what the Ministry called the "Kura Community", and that further consultation would have had little to no effect due to the intense nature of the opposition by a small section of the community.
Turning to Part 2 of the RMA, particularly section 8, the Court agreed with the Ministry's submission that the provision of education to students in te reo Māori would in fact serve the cultural well-being of the community and would be entirely consistent with the Crown's Treaty obligations. The Court found there could be no basis for cancelling the Notice of Requirement.
The Grace decisions
In 2014 the Māori Land Court and the Environment Court heard related cases dealing with the attempted acquisition by the NZ Transport Agency of land in Waikanae owned by the author Patricia Grace.
In Grace - Ngarara West A25B2A (2014) 317 Aotea MB 268 (317 AOT 268) the Māori Land Court considered Mrs Grace's application to have her land set aside as a Māori reservation for the benefit of the descendants of Wi Parata. Having considered the evidence, the Court recommended that the Chief Executive of Te Puni Kokiri set apart Mrs Grace's land as a Māori reservation as a place of cultural and historical significance and a wāhi tapu in accordance with tikanga Māori.
Shortly thereafter, the Environment Court in Grace v Minister for Land Information  NZEnvC 82 considered whether the land could be acquired under the Public Works Act 1981. If the Māori Land Court's recommendation that the land be set aside as a Māori reservation was implemented, that would of itself automatically prevent the acquisition of the land.
The Environment Court held that, in any event:
- the NZTA's consideration of alternative sites, routes or methods of achieving its objectives had been inadequate; and
- it would not be fair, sound or reasonably necessary for the land to be taken.
Both Grace decisions are considered in detail in the September 2014 issue of the Māori Law Review ((2014) September Māori LR).
Treaty Settlement Legislation
As was noted in the December 2014 issue of the Māori Law Review ((2014) December Māori LR), there have been a number of significant Treaty settlement developments over the past year. Some examples of settlement legislation passed in 2014 that are of particular interest from a natural resource management perspective are set out below:
- the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 vests 14 maunga in the Tāmaki Collective, and establishes the Tūpuna Maunga Authority (with six Tāmaki Collective and six Auckland Council members to govern the maunga);
- the Te Urewera Act 2014 declares Te Urewera (formerly Urewera National Park) to be a legal entity in its own right. The former Urewera National Park vests in that Te Urewera entity. The Act also establishes a governance board, Te Urewera Body, which will act on behalf of Te Urewera and undertake governance of that area; and
- the Tapuika Claims Settlement Act 2014 establishes the Te Maru o Kaituna/Kaituna River Authority (with 4 iwi and 4 local authority members).
"Watch this space" – things to keep an eye on, including:
In September 2014 the Crown filed a report with the Waitangi Tribunal (in the context of the Tribunal's WAI 2358: National Freshwater and Geothermal Resources Inquiry) on the Crown’s Freshwater Reform Programme. The Report set out an overview of the Crown's future work programme in respect of its freshwater reforms. The Report noted that the Crown recognises that iwi/hapū have rights and interests in freshwater resources, and that developing options for Treaty-consistent frameworks to provide for the recognition of those rights and interests in water is a key focus for the Crown.
On 20 March 2015 the Crown filed a memorandum of counsel with the Tribunal following the meeting between Ministers and the Iwi Leaders Group at Waitangi on 5 February 2015. The memorandum records that in 2015 the Crown (working together with the Iwi Leaders Group) will focus on developing policy options for enhancing management within freshwater quantity and quality limits, including improving the regime for freshwater allocation and use. The memorandum indicates that policy options would be released for consultation in February 2016.
In January 2015, the Minister for the Environment Hon. Nick Smith outlined a reform agenda for the RMA. Though still light on detail, indications are that the reforms will be broad-ranging. Of particular interest to Māori will be any amendments to Part 2 of the RMA, which sets out the purpose and principles of the Act and includes specific provisions relating to Māori.
Regional Councils will be busy implementing the National Policy Statement for Freshwater Management 2014 which took effect in August 2014. Under the NPS, Regional Councils are required to develop freshwater objectives for all waterbodies in their region. The NPS also requires all local authorities to take reasonable steps to involve iwi and hapū in the management of fresh water, including in identifying tangata whenua values and interests in fresh water which are then to be reflected decision-making regarding fresh water.