April 2016 Māori Law Review
Annie O'Connor and Dave Randal from Buddle Findlay review legal developments from 2015 relating to Māori interests in natural resources.
2015 was a busy year for practitioners in the natural resources area, with significant progress made in several large planning processes (including the Proposed Auckland Unitary Plan and the Christchurch Replacement District Plan), continuing discussions about law reform, and the usual array of cases exploring whether development can proceed in a way that recognises and provides for the relationship of tangata whenua with their taonga.
This article summarises key decisions from 2015 under the Resource Management Act 1991 (RMA) and the Heritage New Zealand Pouhere Taonga Act 2014 (HNZPTA), looks at proposed changes to the RMA and further potential reforms relating to Māori interests in fresh water, and notes a number of ongoing topics to monitor as 2016 unfolds.
Water quality issues and application of the NPSFM
Central government can provide policy direction to district and regional councils through national policy statements, which must be given effect in district and regional plans.
The National Policy Statement for Freshwater Management (NPSFM) was issued in 2011 and updated in 2014 to include a National Objectives Framework.
Under the NPSFM regional councils must, among other things, establish Freshwater Management Units (FMUs, together comprising all water-bodies in each region), and develop freshwater objectives and limits to apply to each FMU, thereby guiding future allocation and other decisions under the RMA relating to the FMUs. Limits are to be set by reference to 'numeric attribute states' specified in an appendix to the NPSFM, which must be at or above a specified 'national bottom line' (unless special circumstances apply).
A controversial aspect of the NPSFM has been Objective A2; in implementing the system summarised above, the Objective requires that "the overall quality of fresh water within a region is maintained or improved". An issue has arisen about whether this Objective permits an "overs and unders" approach, so that a regional council can contemplate water quality in one FMU degrading provided that there is an equivalent improvement in another FMU (and hence maintenance or improvement of water quality across the region).
Two appeals brought by tangata whenua in 2015 led to the Environment Court rejecting any suggestion that the NPSFM provides for an overs and unders approach.
Ngāti Kahungunu Iwi Inc v Hawkes Bay Regional Council  NZEnvC 50
This case involved a proposed change to the Hawke's Bay Regional Resource Management Plan – Land Use and Freshwater Management (the Plan), intended by the Hawke's Bay Regional Council to be a partial step towards implementing the NPSFM. The Plan is a combined regional policy statement and regional plan, with the proposed change in this case being primarily concerned with the regional policy statement component.
As originally notified, the proposed change introduced objectives that there be "no degradation of existing groundwater quality in the Heretaunga Plains and Ruataniwha Plains aquifer systems" (Objective 21) and that fresh water be "managed in an integrated and sustainable manner which includes (…) the maintenance or enhancement of groundwater quality (…)".
The decisions version of the change deleted Objective 21 and amended Objective 22 to remove the requirement for "maintenance or enhancement of groundwater quality." Instead it introduced a requirement to maintain the overall quality of fresh water within the Hawke's Bay region, echoing the wording of Objective A2 of the NPSFM.
Ngāti Kahungunu opposed those amendments and argued that the provisions should largely remain in the form as originally notified.
In the appeal, the Council argued that the as-notified objectives requiring "no degradation of existing groundwater quality" and to "maintain or improve" the current groundwater quality would be impossible to achieve, in part due to the time lag between cause and effect in aquifers – that is, a contaminant may not have an effect on the groundwater it has entered for years or even decades, depending on the permeability of the land. This concept is referred to in the decision as the "load to come".
Ngāti Kahungunu argued in response that those objectives were workable and would properly provide for "the relationship of Māori and their culture and traditions with (…) water", as required by section 6(e) of the RMA.
The Court noted difficulties in assessing the "load to come" and in any event noted that objectives of regional policy statements are just that – goals or aims to be aspired to rather than rules with binding legal effect. The Court considered that the possibility that an objective may be unfulfilled does not excuse a failure to try to achieve the objective.
Of particular note, however, is the Court's rejection of the Council's argument that Objective A2 of the NPSFM allows for (and indeed mandates) an overs and unders approach where "deterioration of the quality of water in one area or waterbody could be tolerated, so long as there is a matching (at least) improvement in quality somewhere else."
The Court considered such an approach to be inconsistent with the "unqualified function imposed on regional councils" by section 30(1)(c)(ii) of the RMA, namely the "maintenance and enhancement of the quality of water in water bodies and coastal water", and incompatible with the requirements of section 69(3), which provides that:
Subject to the need to allow for reasonable mixing of a discharged contaminant or water, a regional council shall not set standards in a plan which result, or may result, in a reduction of the quality of the water in any waters at the time of public notification of the proposed plan unless it is consistent with the purpose of this Act to do so.
The Court also hinted that an overs and unders approach may be inconsistent with section 107 of the RMA, as well as Objective A1 of the NPSFM ("to safeguard the life-supporting capacity [etc] of fresh water").
The Court conceded that, in principle, it may be appropriate for a council to use an overs and unders approach in regard to the overall quality of an individual water body: for instance, an increase in one contaminant could be justified if the same water body experienced an equivalent decrease in another contaminant.
The Court noted, however, that practical implementation and monitoring would be very difficult if the Council's view of overall quality, allowing for overs and unders, were adopted. That is, the Court questioned how anyone could plan to compensate for a decline in water quality in one area with improvements in water bodies in other parts of the region. The Court expressed doubt whether such compensation could even be measured, and queried how one could work out which beneficial effects would be capable of counterbalancing adverse effects in water bodies that could be many kilometres apart. That being the case, the Court highlighted what it considered to be a practical impossibility of ascertaining whether the objective of maintaining overall water quality within the region had been achieved.
To conclude on this issue, the Court held that the overs and unders approach to the interpretation of overall quality is "fundamentally flawed" and one that could lead to a more "degraded and unacceptable water outcome".
The Court therefore allowed the appeal by Ngāti Kahungunu, in light of this interpretation and its finding that the directive in section 6(e) "cannot possibly be achieved in failing to even aspire to maintain, let alone improve, the quality of the water in these aquifers. For the same reasons it does not meet Objective D1 and Policy D1 of the [NPSFM]".
The Court's discussion of the relevant RMA provisions and NPSFM is worth close analysis. We note that the judgment does not discuss in any detail the qualifying words at the end of section 69(3) of the RMA, which seemingly allow a council to set standards that result in a reduction in the quality of water where "it is consistent with the purpose of the Act to do so". It is arguable that regional councils' functions under section 30(1)(c)(ii) should also be subject to the qualifier that they are "consistent with the purpose of the Act" so that an overs and unders approach is not necessarily ruled out in all circumstances.
Nor does the judgment address other provisions in the NPSFM that seem to contemplate an overs and unders approach, such as Objective CA2(d) which allows councils to assign attribute states for freshwater bodies "at or above" the national bottom lines identified for those attribute states, rather than at or above the current states of those attributes.
That said, as the Court observed, regional councils clearly face considerable practical challenges in devising systems to account for freshwater quality and quantity, and in proving that the objective of maintaining or improving the "overall quality of fresh water within a region" is met, as required by the NPSFM.
Other litigation has arisen in relation to the Tukituki Catchment Proposal, following the Board of Inquiry's approval of the scheme in 2015 and the related High Court decision Hawke's Bay and Eastern Fish and Game Councils v Hawke's Bay Regional Council  NZHC 3191. See for example the recent decision of the High Court in Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Conservation  NZHC 220, upholding (on judicial review) a decision by the Department to revoke the status of specially protected land in the Ruahine Conservation Park, to be used for the Ruataniwha dam, in order to swap it for 170 hectares of land to be added to the Park.
Sustainable Matatā v Bay of Plenty Regional Council  NZEnvC 90
Whakatāne District Council proposed to establish a Wastewater Treatment Plant on Māori land and a land application field (LAF) on a dune formation within a council reserve, both of which were intended to service the small township of Matatā. The Council sought designations and resource consents for these purposes.
The application was approved by independent commissioners appointed by Whakatāne District Council (as consent authority, distinct from its developer function) and Bay of Plenty Regional Council. The decision was appealed by Sustainable Matatā Inc, a residents' group, together with Matatā Lot 6A Papakāinga Komiti Inc (the Komiti).
In a wide-ranging decision, the Environment Court allowed the appeal in part and cancelled the designations and resource consent relating to the Plant itself. In respect of the consents required for the LAF, the Court adjourned the proceedings pending further consideration by the Council as to whether it wished to proceed.
In finding against the Council regarding the Plant, the Court was strongly influenced by evidence as to the intended future uses of the Māori land on which the Plant was proposed to be built, and the adjacent Māori Reservation, for community facilities and papakāinga housing. The Court found that, because the proposed designations involved Māori land, a particularly robust selection process should have been undertaken (citing the Privy Council decision of McGuire v Hastings District Council  2 NZLR 577 and the Supreme Court decision in Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd  1 NZLR 593). The Court found that there was no evidence that this type of process had been followed, and held that the review of alternatives had been "cursory and arbitrary" (at ).
The Court also found that the Council's approach to site selection had not given proper regard to the principles of the Treaty of Waitangi (as required by section 8 of the RMA), and had failed adequately to consider cultural issues. The potential for odour issues was particularly important in respect of the alternatives process, given the impact that this would have on any future papakāinga development on the land. The Court found that the odour issues "will affect the relationship of the beneficial owners of this land with the land when the clear, common expectation and understanding is that the land is available for community use and papakāinga at some time in the future."
Also of note in the decision is the Court's discussion of the NPSFM. The proposed application of treated wastewater to land would lead to contaminants discharging into surface water (namely the Old Rangitaiki Channel, and from there to the Tarawera River). While the Court found there to be insufficient evidence on the issue of whether the proposed Plant would improve the quality of fresh water in the region overall (by virtue of the better treatment afforded by the Plant over septic tanks), in principle the Court rejected that the NPSFM allowed an 'overs and unders' approach. It observed:
If the suggestion is that the [NPSFM] provides some permit to drive to the bottom line, or a licence to pollute, then that concept is entirely rejected by the Court. Schedule 2 [of the NPSFM] needs to be read in the context of the [New Zealand Coastal Policy Statement], the [NPSFM] as a whole, Part 2 of the Act, and the other documents related to it. As we say, overall, the [New Zealand Coastal Policy Statement] and the other documents seek to maintain and improve water quality and reduce discharge of contaminants to waterways.
The Court's interpretation of the NPSFM also drew on introductory wording to the NPSFM referring to the national significance of Te Mana o te Wai. The decision discusses the meaning of this term at some length, noting that it was proposed as a term to represent the innate relationship between three of the national values recognised in the NPSFM, namely te hauora o te wai (the health and mauri (life force) of water), te hauora o te tangata (the health and mauri of the people), and te hauora o te taiao (the health and mauri of the environment). The Court concluded that "the term can only be fully taken into account by reference to any additional local tāngata whenua values that aggregated with community values add to those already articulated in the [NPSFM]".
Where to next?
No doubt informed by the Ngāti Kahungunu and Sustainable Matatā decisions, the Government has recently released a discussion document, Next Steps for Fresh Water, seeking feedback on two potential changes to the NPSFM (among other things), namely:
- A change to Objective A2 so that the requirement to maintain and improve overall water quality applies to each FMU, rather than across the region. Given the Court's rejection of what surely was the Government's intention of allowing unders and overs across a region, under the proposal regional councils would be able to allow degradation in a particular value of an FMU, provided that another value or values in the same FMU saw an equivalent improvement. Of course, the challenge for councils will be working out how changes in one value can be compared to changes in another;
- Including a purpose statement in the NPSFM referring to Te Mana o te Wai, and requiring regional councils to reflect the concept in implementing the NPSFM.
Other decisions applying section 6(e) of the RMA
MV Rena – decision of Bay of Plenty Regional Council
Following the urgent Waitangi Tribunal inquiry into the grounding of the MV Rena, briefly discussed in our 2013 update (see (2013) March Māori LR) and reported subsequently (see (2014) August Māori LR), Bay of Plenty Regional Council held a hearing to determine whether resource consent should be granted to the owners of the Rena to 'dump' the Rena indefinitely on the Astrolabe Reef, or Otaiti.
The Hearings Panel appointed by the Council heard evidence from a large number of iwi submitters who described the cultural significance of Otaiti for the iwi and hapū with ties to Mōtiti Island. The majority of these submitters opposed the application on a number of grounds, including that leaving the wreck and the associated contaminants on Otaiti would continue to have adverse effects on the mauri of the reef, and that it would compromise the relationship between the tangata whenua and their tāonga. In light of this evidence, the Panel found that the adverse effects on Māori values would be significant, and that these effects could not be sufficiently mitigated by the proposed conditions.
Despite this finding, consent was ultimately approved; the Panel cited its inability to order the removal of the wreck, and its preference for a more certain outcome provided by the conditions it imposed on the consent, as important factors in its decision.
A number of iwi groups have since lodged appeals with the Environment Court, with a hearing to take place later this year.
Re Waiheke Marinas Ltd  NZEnvC 218
This case involved an unsuccessful application by Waiheke Marinas Ltd to establish and operate a marina at Matiatia Bay, the main transport hub and gateway to Waiheke Island. The proposal involved a large area, able to accommodate 112 vessels, as well as a car parking area to fit 39 vehicles, and some infrastructure for the marina.
The case had an exceptionally large number of parties, with 310 parties joining the proceedings under section 274 of the RMA. Unusually, the decision is prefaced with a comment by Judge Newhook that this was a particularly divisive and complex case, and that those involved should take care to read the full judgment in order to seek a rounded understanding of the weight given to the various issues.
When considering the relevant planning documents, in particular the New Zealand Coastal Policy Statement (NZCPS), one of the weighting exercises carried out by the Court was between the objectives that focus on maintenance and enhancement of the natural environment with those enabling infrastructure that allow for the social, economic and cultural well-being, and health and safety of people and communities. In this context, the Court considered the rate at which built development should be enabled to provide for the needs of a growing community, without compromising the other values of the coastal environment.
Potential landscape and visual effects were a major concern for many of the parties, with the Court finding that the adverse visual, landscape, natural character, and amenity effects of the Proposal were significant. In relation to Māori cultural and historic heritage matters, the Court accepted that there was "clear evidence of historic heritage and archaeological sites in the land area adjacent to Matiatia Bay", and that the existence of the Matietie Historic Reserve located in the northern bay signals the cultural importance of the area, and engaged sections 6(e), 6(f), and 7(a) of the RMA. The Court found that the proposal would not recognise and provide for the relationship between those with mana whenua and their ancestral lands and water, and that it would not take account of kaitiakitanga. The Court stressed that there was no recognition of the relevance of iwi concerns in the design or layout, and no attempt at recognising the cultural significance of the area in the proposal. The Court concluded that this was "not surprising given the absence of meaningful consultation."
These same factors led the Court to find that the proposal did not comply with Objective 3 and Policy 3 of the NZCPS relating to the principles of the Treaty of Waitangi. More generally, the Court concluded that Waiheke Marinas' lack of adequate consultation meant the proposal was significantly contrary to the policy thrust of the NZCPS provisions.
Because of this, the Court concluded that the proposal would be contrary to sections 5, 6(e), and 7(a) of the RMA, and accordingly that the proposal would have more than minor adverse effects on the environment insofar as it related to people and communities. The potentially significant adverse effects on Māori cultural matters were thus an important issue in the Court's ultimate decision to decline consent.
Decisions under the Heritage New Zealand Pouhere Taonga Act (HNZPTA)
Greymouth Petroleum Ltd v Heritage New Zealand Pouhere Taonga  NZEnvC 38
Greymouth Petroleum Limited (Greymouth) successfully appealed a decision of Heritage New Zealand Pouhere Taonga (HNZ) to decline Greymouth's application under section 44(a) of the HNZPTA for an authority to modify or destroy an archaeological site. The site in question is situated in the Waitara Valley in Taranaki, and the modification or destruction proposed by Greymouth was the undertaking of earthworks enabling it to establish an oil/gas well site, access way and pipeline within an area referred to as 'Kowhai D'. Greymouth had been advised that there was a possibility of encountering archaeological remains in the area, and so applied to HNZ as a precautionary measure.
In deciding to decline the application, HNZ relied on the evidence of a representative of Otaraua Hapū, who stated that Wiremu Kingi te Rangitake, a significant ancestor of Te Atiawa, had secretly been buried in the Waitara Valley in an area approximately 300 metres from Kowhai D. The decision determined that the proposed development would not directly impact on the burial site, and that the possibility of locating archaeological material on Kowhai D as "low". Ultimately, however, HNZ found that the values associated with the wider area were so important that any development in the area would have a negative impact on the integrity of those values.
The Court first considered whether the HNZPTA allowed HNZ to consider the effects of a proposal on an area wider than that included in the application, or whether it is restricted only to considering the particular archaeological site physically affected. Upon analysis of the relevant provisions, the Court concluded that HNZ was not correct in its determination, and that the wider cultural landscape should not have been considered. Rather, HNZ's decision should have related only to the physical integrity of the site that Greymouth sought authority to modify.
The Court went on to consider the application on its merits, in case its interpretation of the HNZPTA was incorrect. It determined that, although the evidence of Otaraua Hapū was genuinely given and believed, it was unable to find, even on the balance of probabilities, that the site in question is where Wiremu Kingi was buried. The Court went further and held that even if this was proved, the distance of the burial site from Kowhai D meant that there is no appropriate basis on which to decline the authority sought by Greymouth.
Ngā Mana Toopu O Kirikiriroa Charitable Trust v Heritage New Zealand Pouhere Taonga  NZEnvC 194
This was also an appeal against a section 44 determination by HNZ. In this instance however, HNZ had granted the application by Hamilton City Council to carry out remedial works following a slip on Te Hikuwai Reserve (which included a pā site of significance to Ngāti Wairere). The appeal was brought by Ngā Mana Toopu o Kirikiriroa Charitable Trust (NMTOK), a legal entity with the primary objective of exercising kaitiakitanga over the rohe of Kirikiriroa, including the pā site in question.
NMTOK's position was that it should have been recognised as a representative of Ngāti Wairere, and should therefore have been consulted as tangata whenua before the authority was granted. Section 46 of the HNZPTA requires consultation with "tangata whenua (…) or any other person likely to be affected" before an application is made under section 44. While the Council had previously had contractual agreements with NMTOK in relation to consultation services, it had brought those to an end when it became clear that Ngāti Wairere had withdrawn its mandate from NMTOK, and was not prepared to accept that NMTOK was tangata whenua for the purposes of the HNZPTA. The Environment Court recorded that a matter of complication in this case was NMTOK's apparent motivation to be recognised as having a right to be consulted on future matters concerning Ngāti Wairere, which is an issue the Court noted that it does not have the jurisdiction to determine.
The Court instead allowed the appeal on the limited basis that NMTOK should be recognised as "any other person likely to be affected", on the understanding that this determination does not confirm NMTOK's right to be consulted on future matters involving Ngāti Wairere.
"Watch this space" – ongoing developments in the natural resources area
As noted above, decisions in relation to the major ongoing planning processes in Auckland and Christchurch have begun to be issued and will continue through 2016, which are likely to contain findings of note regarding matters such as protection of sites of cultural significance and appropriate planning regimes for facilitating Papakāinga/Kāinga Nohoanga development.
The Resource Legislation Amendment Bill was introduced in November 2015 and had its first reading on 3 December 2015. One of the Bill's aims is to achieve robust and durable resource management decisions, so that there is high value participation and engagement, including from iwi and hapū, in resource management processes.
To achieve this, the Bill seeks to establish an obligation on councils to invite iwi to form 'iwi participation arrangements' which are to be used to agree upon and record participation expectations between iwi and councils during plan-making processes.
The Bill also inserts a new section to require local authorities to consult tangata whenua, through relevant iwi authorities, on the appointment of hearings commissioners with an understanding of tikanga Māori and of the perspectives of local iwi and hapū for the purpose of hearings under Part 1 of Schedule 1 of the RMA.
As noted above, the Government has signalled further potential reforms to the regime for managing fresh water. The claimants have asked the Waitangi Tribunal, in the context of Stage 2 of its National Freshwater and Geothermal Resources Inquiry (Wai 2358), to determine whether those proposals are Treaty-compliant.
The Tribunal is also continuing with its programme of district inquiries and addressing generic issues as they arise, such as its urgent inquiry in March of this year to consider whether or not the provisions in the Trans-Pacific Partnership Agreement relating to the Treaty of Waitangi provide effective protection of Māori interests.
In 2015 a number of Treaty settlements were signed by the Crown and a number of iwi/hapū, namely Ngāti Hineuru, Taranaki Iwi, Heretaunga Tamatea, Ngāi Tai ki Tāmaki, Rangitāne o Manawatu and Ngātikahu ki Whangaroa.
Te Hiku Claims Settlement Bill was passed in September 2015, weeks before the 40-year anniversary of the start of the Dame Whina Cooper-led land march from Te Hapua to Wellington. Provisions giving effect to the settlements between the Crown and Ngāti Kuri, Te Aupōuri, NgāiTakoto and Te Rarawa were all contained in this legislation.
Other legislation moving through the House this year included bills finalising the settlement of historical Treaty claims of Te Atiawa, Taranaki, Rangitāne o Manawatu, Te Kawerau a Maki, and Hineuru Ngāruahine. (See (2015) December Māori LR.)
Te Ture Whenua Māori Bill – Toni Love and Monique Van Alphen Fyfe (who joined our team at Buddle Findlay during her summer break from university) have previously written about the proposed changes to the Te Ture Whenua Māori Act 1993, and how these reforms may affect Māori. See (2016) February Māori LR and (2016) March Māori LR.
See the March 2013, 2014 and 2015 issues of the Māori Law Review for earlier reviews of Māori interests in natural resource management ((2013) March Māori LR 9-13; (2014) March Māori LR; (2015) March Māori LR).