November 2019 Māori Law Review

Natural resource management – consent conditions – differing effects on mana whenua groups – Ngāti Whātua Ōrākei Whai Maia Ltd

Ngāti Whātua Ōrākei Whai Maia Ltd v Auckland Council & Panuku Development Ltd

Environment Court [2019] NZEnvC 184

14 November 2019

A consent authority can take account of the fact that mana whenua interests will be of differing degrees of connection in assessing effects and setting conditions.

Download Ngāti Whātua Ōrākei Whai Maia Ltd v Auckland Council & Panuku Development Ltd (25 MB PDF).

Overview and result

Natural resource management - consent conditions - differing impacts on mana whenua groups - relative strengths of iwi and hapū interests
Date14 November 2019
CaseNgāti Whātua Ōrākei Whai Maia Ltd v Auckland Council & Panuku Development Ltd (25 MB PDF)
Citation[2019] NZEnvC 184
CourtTe Kōti Taiao o Aotearoa - Environment Court
Judge(s)Judge Newhook, Judge Doogan and Commissioner Paine
Earlier/later decisionsNgāti Whātua Ōrākei Whai Maia Limited v Auckland Council [2019] NZEnvC 51; Ngāti Whātua Ōrākei Trust v Attorney-General [2019] 1 NZLR 1116.
Legislation citedResource Management Act 1991, ss 2, 5, 6, 7, 8, 104, 108, 108AA, 116, 120 and 274; Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 3; Marine and Coastal Area (Takutai Moana) Act 2011; Te Ture Whenua Māori Act 1993, s 30.
Cases citedRJ Davidson Family Trust v Marlborough District Council (2018) ELRNZ 367; Newbury District Council v Secretary of State for the Environment [1981] AC 578; Waitakere City Council v Estate Homes Limited [2007] 2 NZLR 149; Friends & Community Ngawha Inc v Minister of Corrections [2002] NZRMA 401; Ngāi Hapū Incorporated v Bay of Plenty Regional Council [2017] NZEnvC 073; Te Runanga o Ngāi Te Rangi Iwi Trust & Others v Bay of Plenty Regional Council [2011] NZEnvC 402; Ngāti Ruahine v Bay of Plenty Regional Council (2012) 17 ELRNZ 68; Maungaharuru-Tangitū Trust v Hastings District Council [2018] NZEnvC 79; SKP Incorporated v Auckland Council [2018] NZEnvC 81; SKP Incorporated v Auckland Council [2019] NZHC 900; Auckland Council (formerly Auckland Regional Council) & Others v Auckland Council (formerly Manukau City Council) & Others [2011] NZEnvC 77; Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 98; Ngāti Pāoa Iwi Trust v Ngāti Pāoa Trust Board (2018) 173 Waikato-Maniapoto MB 51 (173 WMN 51); Rangitane o Tāmaki Nui-A-Rua Incorporated Society v Tāmaki a Nui-A-Rua Taiwhenua (1996) 11 Tākitimu Appellate Court MB 96 (11 ACTK 96); Panuku Development Auckland Limited v Auckland Council [2018] NZEnvC 179; Port Nicholson Block Settlement Trust v The Attorney-General and another [2012] NZHC 3181.
Overview and resultNgāti Whātua Ōrākei challenged conditions of resource consents for an Auckland port development on the basis that they did not give primacy to Ngāti Whātua Ōrākei interests as mana whenua. Held: the Environment Court confirmed a consent authority has jurisdiction to determine the relative strength of iwi and hapū interests in an area affected by an application. Those differing interests can be factored into setting resource consent conditions and assessing the impact of the proposed activities.

Background

Ngāti Whātua Ōrākei challenged conditions of resource consents for an Auckland port development on the basis that they did not give primacy to Ngāti Whātua Ōrākei interests as mana whenua.

The conditions required the consent holder to continue to liaise with a number of iwi of the Tamaki-Makau-Rau (Auckland) region as the port development works were undertaken.

The parties asked the Court to determine:

Does the EC have jurisdiction to determine whether any tribe holds primary mana whenua over an area the subject of a resource consents application a) generally or b) where relevant to claimed cultural effects of the application and the wording of consent conditions?

Relevant definitions from the Resource Management Act 1991 s 2 are:

  • "Mana whenua" - "... means customary authority exercised by an iwi or hapū in an identified area."
  • "Tangata whenua" - "... in relation to a particular area, means the iwi, or hapū that holds mana whenua over that area."
  • "Kaitaikitanga" - "... means the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Māori in relation to natural and physical resource; and includes the ethic of stewardship".

Discussion

The central concern of Ngāti Whātua Ōrākei was that the conditions gave equal treatment to all Māori parties, and did not provide for any assessment that the strength of relationships with the project were stronger for some groups than others.

The Auckland Council argued that referring to one iwi as having primary mana whenua in consent conditions was not a valid resource consent purpose because it did not relate to managing effects on the environment of an activity.

The Environment Court rejected that argument, because the definition of environment in s 2 includes cultural matters and a number of cases have established that tangible and intangible effects on culture can be part of "effects on the environment". The Court also rejected an argument that if mana whenua statements are made, they could only be recorded and not adjudicated upon.

The Court noted Waitangi Tribunal reports and High Court judgments which had grappled with assertions of mana whenua, and which have noted that layered iwi interests in the same area are not uncommon and their different strengths can be assessed.

After removing the reference to "primary mana whenua" in the agreed question, the Court modified the question it had to answer to:

[88] ... When addressing the s 6(e) RMA requirement to recognise and provide for the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga, does a consent authority including the Environment Court have jurisdiction to determine the relative strengths of the hapu/iwi relationships in an area affected by a proposal, where relevant to claimed cultural effects of the application and the wording of resource consent conditions.

[89] Reframed in that way, the answer to the question is "yes", there is jurisdiction, for the reasons we have recorded.

[90] As an aside, we detected in the submissions on behalf of the council a concern that councils or their hearing commissioners are not equipped to make such enquiries. The complaint cannot sway the outcome. Consent authorities must face up to the complexity of issues in all facets of resource consenting, whether of a Maori cultural nature or otherwise. It is likely that there will be few situations faced by consent authorities as complex as the present in terms of the numbers of parties claiming to be affected, or the ways in which effects might be manifested. But that affords no reason for not facing up to the task.

This is a significant decision because, as the Environment Court notes, councils have been reluctant to make judgements about the relative strength of iwi connections to sites over which consents are sought. Assuming that this decision stands, we can expect to see more litigation which raises this type of issue.

However, there are two cautions noted by the Court that need to be borne in mind:

  • Relative interests will only need to be determined where such findings are relevant to claimed effects and/or consent conditions;
  • Layered iwi and hapū interests are not uncommon. It will be rare that an iwi or hapū has exclusive cultural interests in an area.