April 2017 Māori Law Review
Annie O'Connor, Dave Randal and Alanna Garland Duignan from Buddle Findlay review legal developments from 2016 relating to Māori interests in natural resources.
Decision-makers under the Resource Management Act 1991 ("RMA") must "recognise and provide for (…) the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga" (section 6(e), which sits within Part 2 of the RMA). This requirement extends to every exercise of a power or function under the RMA, including decisions on planning instruments that regulate the use and development of land (and other resources) and decisions on resource consent applications relating to specific proposals.
In practice, Māori sometimes face challenges in demonstrating those relationships and convincing RMA decision-makers to recognise and provide for them in a particular way, as illustrated by a number of cases decided during 2016 and early in 2017.
This article summarises those cases, provides a brief update on the Waitangi Tribunal's freshwater inquiry and Treaty settlements relating to natural resources, and notes a number of developments to watch for during the year ahead.
Providing for the relationship of Māori with natural resources through planning instruments
RMA planning instruments have taken on ever-increasing importance in recent years, following Environmental Defence Society of New Zealand v The New Zealand King Salmon Company Ltd  NZSC 38 where, in short, a majority of the Supreme Court affirmed the hierarchical nature of planning instruments under the RMA.
In that case, Part 2 obligations (regarding the natural character of the coastal environment and outstanding natural landscapes) were given further expression through an instrument of central government, the New Zealand Coastal Policy Statement ("NZCPS"), which in turn had to be given effect by regional and district plans. In those circumstances, the majority held that a decision on a regional plan cannot be made by reference back to the Part 2 provision itself, nor can an 'overall broad judgment' be made under Part 2, when the matters at issue are fully addressed by the NZCPS (unless one of a limited number of exceptions applies).
Since then the courts have been grappling with the implications of King Salmon for decisions on resource consent applications, which are expressed (in section 104) to be "subject to Part 2". In January 2017, the High Court in RJ Davidson Family Trust v Marlborough District Council  NZHC 52 upheld an earlier ruling of the Environment Court that, when determining applications for resource consent, the Court:
[I]s not required to consider Part 2 of the RMA beyond its expression in the planning documents, as the Court correctly applied the Supreme Court's decision in King Salmon to this s 104 RMA application.
The role of Part 2 in determining resource consent applications is an issue central to the RMA's operation, and will be considered further by the higher courts (probably in the context of RJ Davidson Trust, which is under appeal, and otherwise). Nonetheless, the effect of the High Court's decision is that the objectives, policies, and rules in plans are even more important – and will often be determinative – in deciding on resource consent applications, so it is critical for interested parties to ensure that the relevant plans provide for (or at least do not hinder) the outcomes they wish to achieve.
Auckland and Christchurch planning processes
Against that background, during 2016 the independent hearings panels making recommendations on the Proposed Auckland Unitary Plan and considering the Christchurch Replacement District Plan (respectively) were not satisfied, on the evidence put before them, that all sites of cultural significance had been identified and mapped with sufficient robustness to warrant protection through those plans.
In Auckland, the panel recommended that all such sites be removed from a protective overlay because they had not been appropriately evaluated to determine their value. That recommendation was accepted by Auckland Council, and the Independent Māori Statutory Board appealed that decision to the High Court. The High Court issued its decision in March 2017, and found that the Board had not passed the high hurdle of demonstrating that the Council had made an error of law in accepting the panel's recommendation. (See Independent Māori Statutory Board v Auckland Council  NZHC 256.)
In Christchurch, Ngāi Tahu gave "qualified approval" to a two-tiered approach to regulating sites of cultural significance to Ngāi Tahu, on the understanding that there would be an ongoing process of engagement between the Council, Ngāi Tahu, and landowners to develop a rule framework to protect 'second-tier' sites (and/or to gain further information to allow the sites to be recategorised as 'top tier'). Late in 2016 Ngāi Tahu appealed part of the panel's decision exempting earthworks of up to 0.6m in depth from a rule that would otherwise require consent to be obtained (on a restricted discretionary basis) for that activity. The parties to the appeal then reached agreement on how the issue ought to resolved, and on 24 March 2017 the High Court confirmed an agreed approach to delete the 0.6m earthworks exemption from the Rules. The Court agreed with the parties that this approach served to better protect wāhi tapu/wāhi taonga sites in accordance with the requirements of the higher order planning documents and Part 2 of the RMA. (See Te Rūnanga o Ngāi Tahu v Christchurch City Council  NZHC 541.)
Trustees of the Opihi Whanaungakore v Whakatane District Council  NZEnvC 35
Also of relevance, in the context of the burgeoning importance of plans, is the Trustees of the Opihi Whanaungakore decision, which illustrates the importance of ensuring that a party's submission provides the necessary scope to argue for the planning outcomes it seeks.
The Trustees appealed decisions made by independent commissioners on the Proposed Whakatāne District Plan. They were opposed to proposed provisions enabling subdivision and development, for residential purposes, of a block of land known as 'the Piripai block'. The Trustees' appeal centred around the jurisdictional issue of whether their initial submissions on the Proposed Plan gave them scope to pursue the relief they now sought.
The Whakatāne District Council, as respondent, argued that the proposed appeal was significantly broader in scope than the matters raised in the Trustees' submissions. The Council contended that the Trustees' submissions were limited to a number of specific issues, including the name of the structure plan, the activity status of development in the residential zone, and protection of an urupā by a buffer zone. The Council argued that the Trustees' submissions did not address the subdivision and development of Piripai Block as a whole, which their appeal now sought to change.
The Court provided an analysis of clause 14 of Schedule 1 of the RMA, which allows submitters on a proposed plan to appeal to the Environment Court, and noted the following principles (at ):
(a) When examining whether the Court has jurisdiction to hear the merits of an appeal it must enquire whether the general and/or specific relief sought in the appeal comes fairly and reasonably within the ambit of the original submission; whether the relief is sufficiently particular to comply with the provisions of the Act; and that those who are affected by the suggested amendments in the appeal compared to the original submission, would have contemplated such amendment when reading the originally notified submissions; all usually involving a question of degree [to] be judged by the terms of the proposed change and the content of the submissions.
(b) It is important that the assessment of whether any amendment was reasonably and fairly raised in the course of submissions, should be approached in a realistic workable fashion rather than from the [perspective] of legal niceties.
(c) Councils and the Environment Court on appeal, need scope to deal with the realities of the situation. To take a legalistic view and hold that a council or the Environment Court on appeal can only accept or reject the relief sought in any given submission, would be unreal. The Act recognises this because clause 14(2) requires only that the provision or matter has been referred to in the submission.
In this case, the Court found that the Trustees' submissions were not broad enough to allow them to argue that the whole block should be identified as an urupā buffer zone, as that relief was not "reasonably and fairly raised in the submissions".
Providing for the relationship of Māori with natural resources through resource consent conditions
Aside from decisions relating to plans, various other Environment Court cases from 2016 illustrate ways in which Māori relationships with natural resources (and broader cultural interests) can be provided for in decisions on resource consent applications.
Ngāti Pikiao Ki Maketū v Bay of Plenty Regional Council  NZEnvC 97
This decision relates to conditions imposed on consents granted to Bay of Plenty Regional Council in 2015 to increase the re-diversion of water from the Kaituna River into the Maketū/Ongatoro Estuary and thereby help restore the ecological values of the Estuary. Ngāti Pikiao and Ngāti Makino appealed the decision, but only as it related to cultural issues and the consent conditions (rather than the grant of the consent itself).
On appeal, the Environment Court recognised the cultural and historical significance of Maketū in New Zealand and its history with a number of different iwi and hapu groups.
All parties agreed that as a condition of the consent a 'Tangata Whenua Plan' was to be developed by the Council (as consent holder) in consultation with tangata whenua. Both Ngāti Pikiao and Ngāti Makino expressed concern, however, about whether consultation would be genuine and the plan would be effective, and whether the conditions adequately and appropriately recognised relevant cultural issues, including potential effects on mauri (the life force of the resource). The Council acknowledged these concerns by amending the plan title to include 'collaboration' and putting forward more conditions to provide a dispute resolution mechanism in the event that the Council and tangata whenua were not able to reach agreement.
The Court found these conditions adequately recognised the "delicate balance between the concept of partnership recognised in the Treaty of Waitangi, the Resource Management Act and in the relevant Policy Statements and Plans, and the need for certainty about the continued operation of the consent".
A further question remained over whether a type of 'Mauri Monitoring Plan' should be required. Ngāti Pikiao and Ngāti Makino contended that a 'Mauri Model', involving extensive gathering of historical and background information, was required in the circumstances. The Council proposed that the Mauri Monitoring Plan identify "whether a decline in mauri is occurring over time as a result of the project", adopting the definition of mauri from the Regional Plan. In response to concern over how mauri was to be monitored, the Court accepted that the only appropriate way to monitor mauri in this context was in accordance with a mauri monitoring protocol, which would be developed in collaboration with tangata whenua and submitted to the Regional Council for certification. The Court accepted the form of Mauri Monitoring conditions proposed by the Council, finding that they properly provided for the speedy resolution of issues, collaboration between parties, reporting, the development of sub-plans to recognise unique tangata whenua sub-groups, and the resolution of disputes.
The Court concluded that the sub-plan mechanism (to recognise the unique interests of Ngāti Pikiao and Ngāti Makino) was the most appropriate approach to providing for tangata whenua interests and is consistent with statutory instruments and the purpose of the RMA. Overall the Court found the proposed conditions correctly balanced "the interests of tangata whenua and their relationship with this important taonga (Ongatoro) with the need to ensure that the consent is certain, clear and enforceable, and enables the consent already granted".
Hokio Trusts v Manawatu-Wanganui Regional Council  NZEnvC 185
This case involved an appeal by Hokio Trusts against resource consents granted by commissioners for Manawatu-Wanganui Regional Council for restoration activities at Lake Horowhenua.
Due to water quality issues in the Lake, local iwi, councils, and the Department of Conservation agreed to He Hokioi Rerenga Tahi – the Lake Horowhenua Accord in 2013 and an associated Action Plan of 2014-2016. The activities subject to this appeal were part of a group of projects funded under the Government’s Freshwater Clean-up Fund to improve water quality in the Lake, and entailed a fish pass at the lake outlet to Hokio Stream, a sediment trap on the Arawhata Stream, and weed harvesting within the Lake.
The two primary issues on appeal were the potential for adverse ecological effects of the consents being exercised, and potential effects on tangata whenua values.
At the outset of the hearing, the Court determined that no priority would be given to evidence from any individual Māori group or groups party to the proceedings. This was on the basis that all had a relationship to the Lake and its surrounding lands and the Court was concerned not to allow the "historical matters, ownership, mandate authority and consultation" to divert attention from what it considered to be the determinative matter before the Court, namely whether the specific proposals would achieve the sustainable management of the Lake.
The Court heard evidence of the current degraded state of the water quality in the Lake as a result of toxic algal blooms, and was presented with the two short-term remediation proposals – weed harvesting and the installation of a sediment trap – proposed as part of a long-term strategy for Lake restoration.
The Council put forward extensive expert evidence on the advantages of the proposed strategies. It pointed to various benefits such as the ability to avoid any chemical addition to the Lake in order to manage weeds or sediment, the ability to protect Elodea, a fringe plant that protects the lake shoreline, and the positive effects of a reduction in blooms, for example a more swimmable and otherwise usable Lake. In response, the Hokio Trusts' expert raised possible adverse effects such as increased turbidity during harvesting, sediment disturbance and adverse effects on native fish species.
The Court accepted the Lake's historical significance as the food basket of Muaūpoko, and that the current degraded state of the Lake diminishes the strong cultural values associated with it. While acknowledging the differing views on how best to achieve restoration, the Court noted the aim of the activities at issue in this case was to improve the ecological and cultural health of the Lake, and the Court's job was to evaluate whether this aim is achieved in accordance with the sustainable management purpose of the RMA.
The Court concluded that no adverse effect on values had been substantiated in the Hokio Trusts witnesses' evidence, and the water quality and subsequent ecological benefits of the proposals would contribute to the restoration of the Lake's mauri. It further noted the relationship of Muaūpoko as tangata tiaki would continue to foster the relationship of iwi with their ancestral land and water and the taonga that is the Lake.
The Lake Trust submitted that it, as the representative body for the beneficial owners of the lake, was the only body that should be consulted on the appointment of tangata tiaki in relation to the exercise of the consents. The Court accepted this submission, noting that "inter-tribal/hapu relationships are a matter for the tribe to determine, not the Court". The Court also noted that the involvement of any other party must be at the discretion of the Lake Trust with the agreement of all other signatories to the protocol.
The Court found, in terms of Part 2 of the RMA, that the proposed activities would achieve the benefits identified in expert evidence and would make a significant contribution to restoration of water quality and ecological values at the lake, while also assisting with the long-term restoration of cultural values. The Court accepted the design and implementation of the projects included a full consideration of kaitiakitanga through the ongoing involvement of the Lake Trust in particular and Muaūpoko generally.
The appeal was therefore refused, with the consents granted by commissioners on 15 December 2015 confirmed subject to conditions set out in the Court's decision.
Manawatu District Council v Manawatu District Council  NZEnvC 53
This decision related to applications for resource consent and a notice of requirement to enable operation of the Feilding Wastewater Treatment Plant and wastewater discharge systems to the Oroua River and land. As a preliminary point, the Court reviewed the consent history of the Plant, and found that section 124 of the RMA had been relied upon by the applicant as justification for allowing discharge to continue since the expiration of previous consents. The Court found that the use of this section for the prolonged period of time between expiration and this application amounted to an abuse of the RMA.
There were differing views and expectations between the applicant and members of the community, specifically iwi and the Manawatu-Wanganui Regional Council, regarding the predictability of discharge to land as an alternative to discharge to water.
A relevant concern for local iwi was the potential for effects on the mauri of the River. The Court acknowledged that section 6(e) of the RMA, and relevant provisions of the National Policy Statement for Freshwater Management, require involvement of iwi and hapū in decision-making processes relating to freshwater management. The Court concluded that there was no obvious way that the application would be able to satisfy iwi aspirations concerning mauri. However, an agreement reached between Ngāti Kauwhata and the Council concerning the Oroua River Declaration was acknowledged as a major step forward. The Court was satisfied that the applicant had met the requirements of the RMA relating to the consideration of alternative methods of discharge, however it found that the applicant should consult with relevant parties to develop appropriate conditions to provide comprehensive understanding of the effects of current discharges to the River. The Court concluded that a precautionary approach was appropriate, and required the consent holder to adopt the best practicable option as required under section 108(2)(e) of the RMA.
The Court's concerns led to the imposition of a 10-year term of consent, significantly less than the 25 years sought by the applicant. The Court made its decision on the following basis:
We consider that the three factors supportive of a shorter term (uncertainty of performance, effect on mauri and Policy 5-11) outweigh the factors supportive of a longer term (certainty, efficiency and cost) by a very substantial margin. The factors supportive of the shorter term relate directly to the requirements of s 5(2)(a),(b) and (c) RMA in our view. Taking all of these factors into account we confirm that the consent should be granted for a 10-year term as determined by the Regional Council.
The Court was satisfied that the applications were either fully or generally consistent with the relevant provisions in the RMA, NPSFM and the One Plan. The Court also found that the applications provided for the matters in sections 6 and 7 of the RMA. It was found that as a result of the proposal there would be an overall improvement in the quality of the local environment. Due to the applicant's poor compliance history, issues of conditions were relevant. Any remaining adverse effects were to be mitigated through appropriate mechanisms now in place, which provided for the consistent involvement of tangata whenua.
Puwera Māori Ancestral Land Unincorporated Group v Whangarei District Council  NZEnvC 94
This was a decision of the Environment Court on an appeal as to the conditions imposed by Whangarei District Council on a subdivision consent for a block of general land, formerly Māori freehold land within in an area of ancestral land known as Puwera, which had remained in the landowner's whānau for many generations. The landowner and an unincorporated group with interests in Puwera appealed against two conditions of the consent, one relating to a no-stock covenant and the other relating to weed management conditions.
The Court was clear that the scope of the appeal extended only to whether these conditions were appropriate and did not extend to the grant of consent or other conditions.
The Court determined that the proposed conditions had the practical effect of achieving a covenant and the Council had jurisdiction to impose such conditions, if supported by a consent notice registered against the title to protect the continuing obligations.
The consent decision was made against the backdrop of an agreement between the landowner and the Council in 2003 that the Council would assist in the establishment of road access to the landowner's property, provided that she consent to all resource consent applications for the establishment of a landfill.
In its consideration of whether the no-stock covenant condition was appropriate, the Court was mindful of the fact that the land contained an area of significant indigenous vegetation. The Court considered the practical difficulties with excluding stock and questioned whether the condition would achieve a resource management purpose given the permitted status of the activity of grazing stock.
The Court acknowledged that the Māori ownership model of the site, self-management and low levels of exploitation had contributed to the current ecological values of the land. The Court raised a concern that if applied here, such covenant conditions may be applied to future consent applications for surrounding land, preventing development. A core concern for the Court was how such an outcome "recognises and provides for Maori and their relationship with the land under s 6(e), 7(a) kaitiakitanga or the principles of the Treaty of Waitangi under s 8". The Court noted that whether the condition is appropriate will depend on a number of factors including proportionality of response to the adverse effect and the matters under Part 2, including sections 6(e), 7(a) and 8.
The Court also recognised that the Council held concerns over the land being sold for further subdivision outside the whānau, but accepted the appellants' contention that as this was ancestral land such subdivision was highly unlikely and that for a number of reasons the application of kaitiakitanga principles was sufficient to achieve appropriate outcomes under the RMA.
Ultimately, the Court deleted the conditions requiring a no-stock covenant and ongoing weed management.
The challenge of proving a proposal's adverse effects on mauri
Maungaharuru-Tangitū Trust v Hawke's Bay Regional Council  NZEnvC 232
This appeal related to an application for consents to extend a wastewater discharge pipe for a pulp and paper mill into the coastal marine area in Whirinaki in Hawkes Bay. The Maungaharuru-Tangitū Trust appealed the grant of consent by the Council on a number of grounds, including that the Council had inadequately addressed the adverse effects of the proposal on mauri and the relationship of tangata whenua with their ancestral waters, and had not given effect to the NZCPS.
At issue in the appeal was not the Trust's relationship with the area in question, which was acknowledged, but the effect that granting consent might have on that relationship. The Court was not convinced that the proposal should be declined because of the adverse effects of the current discharge and the pipeline on mauri, because the pipeline, and the discharge at its current level, formed part of the existing environment against which effects must be assessed. The Court considered that the Trust's appraisal of effects on mauri had been premised on an incorrect starting point of there being no pipeline or discharge. Further, the Court was not persuaded by evidence brought by the Trust of adverse effects (of the existing discharge) on fisheries.
The case is also of note because of the Court's discussion about consultation principles and, in the present situation where the parties had different expectations about how the process should run, whether the applicant had consulted properly. The Court found that consultation had been appropriate.
Other developments in 2016 regarding Māori and natural resources
During 2016 the Waitangi Tribunal continued its work programme of progressing district inquiries and hearings into other historical claims, as well as a number of kaupapa (thematic) inquiries.
The Tribunal's report regarding Māui's Dolphin was released in May 2016, and found that, while the prospect of extinction was of grave concern, ultimately the Crown's policy on the protection of that taonga species did not breach the Treaty of Waitangi.
Also in May 2016, in a decision that has partly been trumped by more recent events, the Tribunal found the Treaty provision in the Trans-Pacific Partnership Arrangement provided a reasonable degree of protection for Māori interests.
Of more general significance in relation to resource management, the Tribunal has been progressing Stage 2 of its National Freshwater Inquiry (Wai 2358). Hearings at Waiwhetu Marae have focused on whether the Government's proposed reforms to the regime for managing fresh water are Treaty-compliant.
A number of Treaty settlement processes took significant steps forward in 2016. Agreements in principle were reached between the Crown and Ngāti Kahungunu ki Wairarapa Tāmaki Nui-ā-Rua and Te Akitai Waiohua, and deeds of settlement were signed with Iwi and Hapū of Te Rohe o Te Wairoa and Ahuriri Hapū. Rangitāne o Manawatū had their Claims Settlement Act passed in December, less than one year after the Bill was introduced.
The very significant Te Awa Tupua (Whanganui River Claims Settlement) Act was given Royal assent in March 2017. The Act recognises Te Awa Tupua, declares that Te Awa Tupua is a legal person and establishes Te Pou Tupua (consisting of two persons – an iwi appointee and a Crown appointee) to act as its guardian. (See (2014) May Māori LR; (2016) August Māori LR; (2016) December Māori LR.)
In addition to these milestones, various iwi and hapū had their claims settlement bills progress through Parliament in 2016. This area promises plenty more progress to watch for in 2017.
Other possible developments in 2017
2017 is likely to bring a number of important new developments that will affect Māori interests in resource management, both through legislative reform and decisions made by the courts, including those summarised below.
The Resource Legislation Amendment Bill passed its third reading on 6 April 2017, and will become law upon receiving royal assent. One matter of particular interest, added to the Bill following its consideration by the Select Committee, is in relation to relationship instruments now named “Mana Whakahono a Rohe: Iwi Participation Arrangements”. The final version of the Bill further clarifies these arrangements, and puts more control about their timing in the hands of iwi authorities. The Bill also provides that local authorities that enter into a Mana Whakahono a Rohe will have six months from the agreement's initiation to review their policies and processes, to ensure they are consistent with the arrangement.
Since our last update Te Ture Whenua Māori Bill has had its second reading and also been through the Select Committee processes. A number of changes were recommended to the Bill as introduced. The Select Committee Report noted that "one of the bill’s core principles is that tikanga Māori is central in deciding matters that involve Māori land", and this is reflected in its report through a less prescriptive approach to determining the preferred recipients of Māori land, relationships of descent, and dispute resolution in favour of calling on tikanga Māori relevant to the iwi, hapū, or whānau in each individual case.
In relation to case law developments, the remainder of this year is likely to bring:
- further interpretation of "subject to Part 2", following the RJ Davidson Trust decision (discussed above);
- a decision in the Environment Court appeal relating to the MV Rena; and
- further consideration of Ngāi Tahu's appeal on the Māori-related provisions in the Christchurch Replacement District Plan.
See the March 2013, 2014, 2015 and the April 2016 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; (2016) April Māori LR).