Dave Randal, assisted by Chelsea Easter, Alanna Garland Duignan, Frances Wedde and other colleagues at Buddle Findlay review legal developments from 2019 and much of 2020 relating to Māori interests in natural resources.

Overview

Ngā mihi nui ki a koutou katoa – the team at Buddle Findlay is privileged to have the opportunity to present this overview of case law and other legal developments in the resource management field that are of particular relevance to practitioners advising Māori (or on issues relating to Māori interests).

This is the latest in a series of annual reviews, linked at the foot of this article. Due to COVID-19 lockdown-related disruption, this article covers developments during 2019 and for the majority of 2020.

As well as being a period of major turmoil and developments on a global scale, the last 18 months have seen significant changes in the resource management field in Aotearoa.

The Government has focused on the development and implementation of new national-level direction for the management of natural resources, all with specific implications for Māori, including three new national policy statements and a new set of national environmental standards.

A further Act to amend the Resource Management Act 1991 ("RMA") has come into force during 2020, but more substantial reform is looking increasingly likely, given a broad base of political support; the Resource Management Review Panel released its report on new directions for resource management in New Zealand in June 2020, recommending the repeal and replacement of the RMA. Māori interests will no doubt be a central consideration in that legislative process.

Further, in response to the economic and social effects of the ongoing global pandemic, the COVID-19 Recovery (Fast-track Consenting) Act 2020 was enacted to provide a new consenting pathway for qualifying infrastructure projects, with important protections for Māori interests.

In the courts, there have been further developments in the application of the Supreme Court's 2014 King Salmon decision[1] with the High Court in Environmental Defence Society v Otago Regional Council[2] (the "Port Otago decision") favouring a strict application of 'avoidance policies' in the New Zealand Coastal Policy Statement. As noted in previous updates, this line of case law reinforces the continued importance of Māori participating in plan-making processes to ensure that plans protect their interests.

This article begins by discussing the Port Otago decision, before considering developments in relation to freshwater, in particular the recently released National Policy Statement for Freshwater Management 2020 ("NPSFM 2020") and the Resource Management (National Environmental Standards for Freshwater) Regulations 2020 ("NES Freshwater"). We also summarise the earlier findings of the Waitangi Tribunal in the Stage 2 Report on the National Freshwater and Geothermal Resources Claims and consider two recent Environment Court appeals; one involving a groundwater consent application for water bottling in the Bay of Plenty, the other an appeal on a proposed plan.

Other cases of note from 2019 have explored mana whenua status. We summarise the Environment Court's findings in two cases, one in relation to the Court's jurisdiction to determine the relative strengths of the hapū/iwi relationships in an area, and another that addressed issues relating to the composition of a Kaitiaki Forum Group.

We also summarise some of the recent case law involving the interaction of other legislation with Māori rights and interests, such as the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, the Fisheries Act 1996, and the Heritage New Zealand Pouhere Taonga Act 2014. Other notable cases also discussed below have explored a range of matters including cultural effects and relationships, wāhi tapu and wāhi taonga sites, and consultation.

This article also summarises recent developments in RMA policy and legislative reform and provides a brief update on Treaty settlement milestones and developments, before offering some thoughts on developments to watch for in the year ahead.

Discussion

The role of the New Zealand Coastal Policy Statement / National Policy Statements

Environmental Defence Society v Otago Regional Council [2019] NZHC 2278

In our 2017 and 2018 reviews, we discussed the heightened importance of directive policies in RMA planning instruments following:

• the Supreme Court's decision in King Salmon;
• a subsequent decision of the High Court which held that the 'avoidance policies' in the New Zealand Coastal Policy Statement ("NZCPS") take precedence over the infrastructure and development provisions in the NZCPS;[3] and
• the Court of Appeal's decision in RJ Davidson Family Trust v Marlborough District Council [2018] NZCA 316.

The more recent Port Otago decision concerned the Proposed Otago Regional Policy Statement; at issue was whether there was conflict between the NZCPS's avoidance policies and Policy 9, which provides for the efficient and safe operation of ports.

The Environment Court had reconciled the policies and found that "when read as a whole" the NZCPS contemplates that adverse effects of port structures on certain landscapes or ecosystems are to be avoided in almost all – but not all – circumstances.

The Court resolved the potential conflict between Policy 9, which is to "recognise that a sustainable national transport system requires an efficient national network of safe ports, servicing national and international shipping, with efficient connections with other transport modes (…)" and the avoidance policies by reference to Policy 7 (strategic planning). Policy 7 requires regional councils to identify areas of the coastal environment where particular activities are or may be inappropriate, and provide protection from inappropriate uses accordingly. The Court considered that Policy 7, read together with Policy 9, enabled a strategic consideration of the areas and values to be protected, taking into account the need to ensure the safe and efficient operation of the national network of ports.  Accordingly, the Court read the NZCPS as a whole and found there were no (quasi) prohibited activities created by the avoidance policies which prevented port activities continuing or being established where they were necessary for the safe and efficient operation of the port.

The Environmental Defence Society appealed the Environment Court's decision to the High Court, which allowed the appeal, set aside the interim decision and returned the matter to the Environment Court for reconsideration.

The High Court noted (at [52]) that:

Implementation of the Avoidance Polices in the NZCPS inevitably results in rules creating prohibited activities that cannot obtain a resource consent unless the NZCPS itself allows less than absolute compliance with the Avoidance Policies because of some conflict with another policy in the NZCPS.

The High Court further held (at [104]):

The Avoidance Policies are prescriptive. NZCPS Policy 9 (and NZCPS Policies 6 and 7) are not. This means that the PORPS must require port activities to "avoid adverse effects" on Outstanding Coastal Sites, including activities associated with safety and efficiency. Ports are treated the same as aquaculture and other regionally significant infrastructure. The Environment Court, in my view, erred in its recommendation otherwise.

The High Court's decision has been appealed to the Court of Appeal, which will consider whether or not the High Court correctly applied the Supreme Court's decision in King Salmon.[4] The outcome of this appeal in 2021 will be awaited with interest by resource management practitioners.

Other judicial decisions have taken a somewhat different approach to the Supreme Court’s judgment in King Salmon; in some other instances minor and transitory effects have been found to be acceptable, and mitigation and remediation have been taken into account when determining if adverse effects are avoided. A strict approach to the requirement to 'give effect to' the NZCPS in lower-order planning documents would represent a further evolution of the King Salmon approach in RMA planning.

Either way, the Port Otago decision reinforces the point made in previous articles, that plan-making processes present risks and opportunities to Māori, and care is needed to ensure that plans appropriately protect Māori interests.

Developments in relation to freshwater

The Stage 2 Report on the National Freshwater and Geothermal Resources Claims (Wai 2358)

The Waitangi Tribunal released its Stage 2 Report in August 2019, which critiqued the law and Crown policy relating to freshwater. The Tribunal set out numerous recommendations, including that the Crown:

• recognise Māori proprietary rights and provide ‘proprietary redress’, by arranging for an allocation of fresh water on a percentage basis to iwi and hapū, according to a regional, catchment-based scheme;
• provide an allocation of water for Māori land development;
• investigate the feasibility of royalties and other forms of proprietary redress;
• establish a national co-governance body for freshwater, which would (among other things) arrange the allocation scheme for iwi and hapū, investigate other forms of proprietary recognition, and oversee more comprehensive restoration of water bodies;
• amend the RMA’s participation provisions (transfers to iwi, joint management agreements, and mana whakahono a rohe arrangements) to provide effectively for co-governance and co-management of freshwater taonga;
• take urgent action on the problem of under-resourcing of Māori participation in RMA processes, and to scope and provide assistance for marae and papakāinga water supplies;
• institute monitoring of the Treaty performance of councils;
• consider retaining and expanding the Te Mana o te Wai Fund as a long-term fund for the restoration of degraded freshwater taonga; and
• make co-design of policy with Māori a standard government process where Māori interests are concerned.

National Policy Statement for Freshwater Management 2020 ("NPSFM 2020") and the Resource Management (National Environmental Standards for Freshwater) Regulations 2020 ("NES Freshwater")

Earlier, in 2018, the Government had announced its plan to restore and protect New Zealand's freshwater through its Essential Freshwater work programme. Public consultation on the proposed freshwater reforms occurred between September and October 2019, resulting in approximately 17,500 submissions. The Ministry for the Environment had also consulted previously with Te Kāhui Wai Māori – the Māori Freshwater Forum.

This process culminated in the NPSFM and NES Freshwater coming into effect on 3 September 2020. Of note, the NPSFM 2020 confirms Te Mana o te Wai as a fundamental concept underpinning the NPSFM 2020. Te Mana o te Wai sets out a hierarchy of obligations – first to waterbodies themselves, second to the health needs of people, and third for other uses. Policy 1 requires that fresh water is managed in a way that gives effect to Te Mana o te Wai. Policy 2 also provides that tangata whenua are actively involved in freshwater management (including decision-making processes), and Māori freshwater values are identified and provided for. The NES Freshwater also includes reference to Māori freshwater values.

How councils and the Courts interpret and implement Te Mana o te Wai, and the NPSFM and NES Freshwater more generally, will be a matter of considerable ongoing interest.

Te Runanga o Ngati Awa v Bay of Plenty Regional Council [2019] NZEnvC 196

The Environment Court considered two appeals and an application for declarations relating to the grant of consents to Creswell NZ Limited to enable the expansion of an existing water extraction and bottling operation in Otakiri, near Whakatāne. Consent had been granted by Bay of Plenty Regional Council and Whakatāne District Council.

Te Rūnanga o Ngāti Awa appealed against the Bay of Plenty Regional Council's decision to grant consent to the groundwater take on the basis of adverse effects, and in particular (at [7]):

(a)       effects on te mauri o te wai (the metaphysical spiritual essence of the water); and

(b)        effects on the ability of Ngāti Awa through the Rūnanga to be kaitiaki (guardians) of the water resource.

Physical effects of the proposed water take on the groundwater resource were not at issue.

The Environment Court also heard an appeal and application for declarations by Sustainable Otakiri Incorporated relating to the Whakatāne District Council's decision to change conditions of the existing land use consent.

The Environment Court's decision was split. The majority began by considering whether potential adverse cultural effects arising from the export of water from a rohe, or "the end use of exporting water in plastic bottles results" gave rise to relevant effects on the environment to which the Court should have regard (at [41]). Having analysed the case law on end-use, the Court considered it "must have regard to the consequential effects of granting the resource consents sought, or the amendments sought to conditions, within the ambit of the RMA and subject to limits of nexus and remoteness" (at [59]). Ultimately the Court concluded (at [66]) that:

in this case, the end uses of putting the water in plastic bottles and exporting the bottled water are matters which go beyond the scope of consideration of an application for resource consent to take water from the aquifer under s 104(1)(a) RMA.

The Court recorded that Te Rūnanga o Ngāti Awa's opposition centred on the tikanga effects of taking a large amount of water from the aquifer for bottling and sale overseas (at [71]).

In evaluating the competing evidence on cultural effects, the Court recognised that the beliefs expressed by witnesses for Te Rūnanga were honestly held and perhaps shared by many iwi members. Ultimately, however, the Court preferred the evidence of the witness called by Creswell, who considered that "te mauri o te wai is retained as water passes through its many forms before returning to Papatūānuku to begin its journey again within the earth's water cycle" (at [103]). The Court found that the proposed monitoring conditions (linking to a proposed Kaitiaki Liaison Group) were appropriate to "help protect the sustainability of the resource and its mauri and mana" (at [108-109]).

More broadly, the Court found that the proposal was consistent with the national and regional planning instruments (at [165]).

Commissioner Kernohan, in the minority, considered that both the water take and the land use variation applications should be declined (at [322]). The Commissioner's views included that "the pollution created from the production and specifically end use disposal of plastic water bottles does not meet the objectives and policies of the RMA" (at [346]).

In its final decision, Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZEnvC 89, the Environment Court granted the regional and district consents on conditions.

The interim decision has been appealed to the High Court by both appellants and a judgment is yet to be delivered.

Aratiatia Livestock Ltd v Southland Regional Council [2019] NZEnvC 208

This decision of the Environment Court concerns ten of the appeals on Southland Regional Council's proposed Southland Water and Land Plan. The focus of this interim decision was on the higher order provisions of the plan, including most of its objectives and certain key policies.

The decision refers to the National Policy Statement for Freshwater Management 2017 ("NPSFM 2017") and therefore certain elements may now be outdated given the recent release of the NPSFM 2020. While the Court was aware of the draft NPSFM 2020 it was not able to consider it in its decision.

Nonetheless, key to the Court's consideration was Te Mana o te Wai, a concept that was central to the NPSFM 2017 and has been developed further in the NPSFM 2020, and its decision may provide guidance as to how the newer NPS will be implemented.

Freshwater management under the NPSFM 2017 had to consider and recognise Te Mana o te Wai, the integrated and holistic wellbeing of freshwater. Under that concept, users of water must provide for hauora and in doing so, protect the mauri of water. This was recognised as integral to freshwater management and an expression of Treaty of Waitangi principles.

Te Mana o te Wai had three core functions in the proposed Plan:

1. as a korowai (cloak) or overarching statement associating the values relating to a particular waterbody and freshwater management unit;
2. as a platform for tangata whenua and the community collectively to express their values for freshwater; and
3. to align management tools with values and aspirations to maintain and improve both water quality and quantity.

Also relevant to the proposed Plan was the incorporation of Ngāi Tahu's philosophy of "ki uta ki tai"; that is, that water, land and people are interconnected, and natural resources are to be managed in a way that responds to their connectivity. It required holistic management and is concerned with each of the parts, and the sum of the parts.

The major point of consideration was how the concepts of Te Mana o te Wai and ki uta ki tai were addressed in the proposed Plan. The Court was of the opinion that the objectives and policies in the proposed Plan were intended to reflect and express Te Mana o te Wai and the Plan was structured to progressively elaborate on the outcomes; such a structure was not normal for a Plan. The Court recommended that some of the objectives be reworded and reordered.

The Court did not finally decide on the implementation and interpretation of the NPSFM 2017. Instead, it directed the parties to address the interpretation and implementation of Te Mana o te Wai and ki uta ki tai in the Plan and address how it is to take into account the principles of the Treaty.

In Aratiatia Livestock Ltd v Southland Regional Council [2020] NZEnvC 93 the Court then issued a second interim decision on the interpretation and implementation of Te Mana o te Wai and ki uta ki tai. The Court set out a new interpretation statement to be inserted into the body of the Plan and amended Objective 2. The Court, however, still had questions around section 8 of the RMA as no evidence was given on the topic.

In a third interim decision, the Court in Aratiatia Livestock Ltd v Southland Regional Council [2020] NZEnvC 110 approved the interpretation statement and Objective 2.

Mana whenua status

Ngāti Whātua Ōrākei Whai Maia Ltd v Auckland Council [2019] NZEnvC 184

This was a decision by the Environment Court on a preliminary jurisdictional question as to "primacy of mana whenua status". Auckland Council had granted resource consent for an extension of the North Western Breakwater at Westhaven Marina and for ship mooring 'dolphins' at Queens Wharf. Ngāti Whātua Ōrakei Whai Maia Ltd appealed against the resource consent conditions relating to mana whenua engagement and the placement of pou whenua (cultural markers).

The parties agreed on a preliminary question for the Court to consider regarding jurisdiction as follows (at [9]):

Does the Environment Court have jurisdiction to determine whether any tribe holds primary mana whenua over an area the subject of a resource consent application:

• • generally; or

  • where relevant to claimed cultural effects of the application and the wording of resource consent conditions?

The Court briefly discussed section 30 of Te Ture Whenua Māori Act 1993. While that section enables the Māori Land Court to advise other courts and bodies as to who are the most appropriate representatives of a class or group of Māori, the Māori Land Court has expressed reluctance to issues such orders when alternatives exist (at [61]).

The Court went on to acknowledge that there can be layers of interests asserted by each iwi and hapū (at [73] – [74]). It stated (at [82]) that (emphasis added):

… while it is possible to conclude that a decision-maker might be required to consider evidence about multiple interests of multiple parties in any given place, we do not see any clear directive or encouragement in the Act to identify "primacy" in the sense of a general pre-eminence or dominance as argued on behalf of Ngāti Whātua. The conclusion we draw is that there is clearly jurisdiction to hear and determine competing claims as to relative status between Māori groups. We do not accept however that it would necessarily be correct to describe that jurisdiction as a power to determine that a particular tribe holds primary mana whenua over an area…

However, based on its findings that there may be many layers of differing interests, the Court determined that the question posed by the parties needed to be modified (at [26] and [84]). The Court therefore reframed the agreed preliminary question as follows (at [88]):

When addressing the s6(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 hapū/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.

The Court answered the reframed question affirmatively (at [89]). Therefore, when addressing the requirement in section 6(e) of the RMA,[5] the Environment Court found it had jurisdiction to determine the relative strengths of the hapū/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. Complex Māori cultural issues are not something that a consent authority can avoid dealing with (at [90]).

In Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768 the High Court heard appeals on the Environment Court's decision. The appeals alleged a procedural error in reframing the agreed preliminary question, and that the Environment Court had no jurisdiction to make findings on the relative strengths of the hapū/iwi relationships in an area affected by a proposal. The High Court outlined the various provisions in the RMA that provide scope for consideration of mana whenua interests, including Part 2 and section 104, and the provisions that seek to provide for Māori, iwi and hapū input into resource management decision-making. Whata J also looked to the relevant objectives and policies in the Auckland Unitary Plan ("AUP") and provided an overview of the legislative and planning context (at [64] to [74]).

In regard to the alleged procedural error, the Court found that a formal opportunity to be heard should have been afforded to the parties on the reframed question. Therefore, the appeal was allowed in part.

However, the High Court concluded that the Environment Court was correct to answer the reframed question in the affirmative. Whata J was satisfied (at [133]) that:

when addressing the s 6(e) RMA requirement 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, a consent authority, including the Environment Court, does have jurisdiction to determine the relative strengths of the hapū/iwi relationships in an area affected by a proposal, where relevant to claimed cultural effects of the application and wording of the resource consent conditions. But any assessment of this kind will be predicated on the asserted relationship being clearly grounded in and defined in accordance with tikanga Māori and mātauranga Māori and that any claim based on it is equally clearly directed to the discharge of the statutory obligations to Māori and to a precise resource management outcomes.

That said, Part 2 of the RMA does not empower decision-makers, including the Environment Court, to engage in a process of conferring, declaring, or affirming tikanga-based rights, powers or authority per se. That jurisdiction rests with the High Court and/or the Māori Land Court. But where iwi or hapū claim that a particular outcome is required to meet the directions in section 6(e), 7(a) and 8 in accordance with tikanga Māori, resource management decision-makers must meaningfully respond to that claim. Therefore, the Environment Court may make evidential findings about tikanga-based rights, powers and/or authority insofar as that is relevant to discharge the RMA's obligations to Māori.

In reaching its conclusion on the reframed question, the Court drew on its earlier analysis, including its overview of the legislative and planning context, where Whata J noted that:

• Parliament clearly anticipated that resource management decision-makers would be able to grasp the various reference to kupu Māori in the RMA and, where necessary, apply them in accordance with tikanga Māori;
• case law has shown an evolving understanding and application of mātauranga Māori and tikanga Māori, and the AUP is example of this evolution; and
• the RMA anticipates that there will be cases where different iwi and hapū may have overlapping areas of interest.

Whata J also noted a clear need for caution when making these types of assessments, and that any finding as to relative strength will only ever be of a qualitative kind.

The Court did not answer part (b) of the agreed preliminary question (noted in the Environment Court summary above) as the Court did not have the benefit of full argument and evidence on the meaning of "primary mana whenua" and its relevance to the decision-making exercise.

Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203

This was an interim decision of the Environment Court on appeals by multiple parties against the grant of resource consents and a notice of requirement for Waka Kotahi NZ Transport Agency's proposed Te Ara o Te Ata: Mt Messenger Bypass Project.

The project involves the proposed use of land returned to Ngāti Tama as part of its historical Treaty settlement in 2003. As that Treaty settlement land would not be compulsorily acquired by Waka Kotahi, the Court found that it could not issue its final decision until it was advised by Te Rūnanga o Ngāti Tama Trust as to whether agreement had been reached with Waka Kotahi (at [222] and [483]). However, the Court did make final decisions on a range of cultural matters raised by the appellants.

One of the main issues was the composition of the Kaitiaki Forum Group for the project. Te Rūnanga o Ngāti Tama Trust argued that Mr and Mrs Pascoe and Poutama Kaitiaki Charitable Trust (one of the appellants) should not be included as they were not kaitiaki. The Court looked to a range of factors in reaching its conclusion that Poutama were not tangata whenua exercising mana whenua over the project area, and therefore they could not exercise kaitiakitanga (at [339], [462], [463], and [467]). The Court looked to the strength of the evidence regarding a whakapapa or whanaungatanga connection to the affected land, as well as whether there was corroborating evidence, for example from cultural values assessments and Waitangi Tribunal reports (at [320]). The Court concluded that there was insufficient probative evidence to support their claims for mana whenua status (see [296], [303] to [305], [315], [318] to [320], [326], and [330]).

The Court also determined whether Te Korowai Tiaki o Te Hauāuru Incorporated, a group whose members all whakapapa to Ngāti Tama, should be included on the Kaitaiki Forum Group if the notice of requirement was confirmed. The Court found that Te Korowai had other alternatives to raise its concerns, that it would be administratively inefficient to engage with different bodies and that public authorities are entitled to rely on the representative entity for that iwi, in this case their Rūnanga (at [379] to [388]).

The Court's interim decision has been appealed to the High Court by Mr and Mrs Pascoe and Poutama Kaitiaki Charitable Trust, and Te Korowai Tiaki o Te Hauāuru Incorporated. A judgment is currently awaited.

Māori interests and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 ("EEZ Act")

Klink v Environmental Protection Authority [2019] NZHC 3161

This case related to an appeal by Ms Klink (who represented Ngāi Rehua Ngatiwai ki Aotea, the local iwi of Great Barrier Island) and an application for judicial review by the Society for the Protection of Aotea Community and Ecology Inc., in respect of a decision by the Environmental Protection Authority's decision-making committee ("DMC"). The decision, under section 62(1) of the EEZ Act, was to grant a marine consent to dump up to 250,000 m² of dredged material into the exclusive economic zone ("EEZ") east of Aotea Great Barrier Island.

The principal argument was that the decision-maker had failed to give effect to the principles of the Treaty of Waitangi (at [28]). The Court acknowledged the purposeful and specific recognition of the Treaty of Waitangi in the EEZ Act, emphasised by section 12 which specifies the sections in the Act which "recognise and respect the Crown's responsibility to give effect to the principles of the Treaty of Waitangi for the purposes of this Act" (at [56]).

As referred to in section 12(a), section 18 of the EEZ Act provides for the Māori Advisory Committee ("Committee") of the Environmental Protection Authority to advise marine consent authorities so that decisions made under the Act may be informed by a Māori perspective. In this case the Committee had advised the DMC of the limitations in the applicant's engagement process with iwi. The Court acknowledged it was open to the DMC to reject aspects of the Committee's recommendations, but the DMC needed to "take into account and understand the matters to which it was advised to have regard" (at [60]).  The Court considered that the DMC rejecting the aspects of Committee's advice in this situation was contrary to sections 12(a) and 59(3)(c) of the Act (at [64]).

In particular, the Court critiqued the DMC's rejection of the Committee's advice on "interests". The DMC had focused on section 12(c) and the section 4 definition of "existing interests", confining its consideration to those with recognised Treaty claims or Marine and Coastal Area rights only.  The Court found the DMC had overlooked its powers to consider those iwi who may be affected by the application (at [68]).

The Court further held that convening the hearing in Auckland, which may have contributed to the DMC not being aware of the mandate issues in Ngāti Rehua, was another consequence of not taking on the Committee's advice (at [73]). The choice given to the consent holder as to membership of the Iwi Liaison Group was also found to be contrary to the Committee's function to provide a Māori perspective and contrary to the Treaty of Waitangi principles recognised by the EEZ Act (at [75]).

As a result, the DMC's decision was contrary to section 12 and 59(3)(c) of the Act. The High Court quashed the decision and referred it back to the EPA for reconsideration with regard to the Committee's advice on meaningful iwi engagement.

Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2020] NZCA 86

In our review of 2018, we discussed the High Court decision on Taranaki-Whanganui Conservation Board's appeal of the Environmental Protection Authority's grant of marine consent to Trans-Tasman Resources Ltd ("TTR") for iron ore extraction and processing activities on the seabed off the South Taranaki Bight.[6]

TTR appealed the High Court's decision to the Court of Appeal and the respondents filed cross-appeals, including an argument relating to the Treaty of Waitangi.

The Court of Appeal set out and discussed section 12 of the EEZ Act. On the facts, the Court did not have to determine whether section 12 is an exhaustive statement of the ways in which the principles of the Treaty are given effect in the EEZ Act (at [160] to [162]). However, the Court did note (at [163]) that:

in order to ensure that s 12 achieves the outcome that it expressly identifies — recognising and respecting the Crown’s responsibility to give effect to the principles of the Treaty — the references to existing interests in s 59 must be read as including the interests of Māori in relation to all the taonga referred to in the Treaty.

The Court reiterated that all customary rights and interests in relation to taonga referred to in the Treaty are existing interests, regardless of whether they have been expressly recognised in a Treaty settlement (at [167]). The Court explained, by reference to Attorney-General v Ngati Apa, that it is not appropriate to shoe-horn customary rights and interests into the English property law framework. Therefore, the full range of customary rights, interests and activities identified by Māori as affected by a proposal must be considered when determining a proposal's effects. In the context of this application, the kaitiakitanga relationship between the relevant iwi and the marine environment was integral to giving effect to the Treaty.

The Court held (at [174]) that the DMC was required to:

engage meaningfully with the impact of the TTR proposal on the whanaungatanga and kaitiakitanga relationships between affected iwi and the natural environment, with the sea and other significant features of the marine environment seen not just as physical resources but as entities in their own right — as ancestors, gods, whānau — that iwi have an obligation to care for and protect

The DMC decision did not contain an analysis of the nature or significance of the kaitiaki relationship or the effects of the proposed activities on this relationship. While adverse effects of the TTR proposal were acknowledged, there was no engagement with the nature and extent of these effects, or the extent to which other factors outweighed these adverse effects.

The Court commented (at [178]) that the relationships "between iwi and relevant taonga must be taken into account as an "applicable law" under section 59(2)(1), where it is relevant to an application before the EPA". The analysis must engage with concepts such as whanaungatanga and kaitiakitanga as they are applied and understood by Māori. This begins with identifying the relevant aspects of tikanga. Therefore, the DMC erred in law by failing to have regard to tikanga as relevant "applicable law". The High Court therefore also erred in finding the DMC's decision to be consistent with the EEZ Act.

Leave has been granted to appeal to the Supreme Court.[7]

Māori interests in the Fisheries Act 1996 and RMA

Attorney-General v Trustees of the Motiti Rohe Moana Trust [2019] NZCA 532

This was an appeal to the Court of Appeal by the Attorney-General. The issue was whether regional council's functions, as prescribed in the RMA, permitted the prohibition of fishing in specified parts of the coastal marine area in order to maintain indigenous biodiversity, given that those fish species were also regulated by the Fisheries Act 1993.

Overfishing of species around Motiti Island had led to an increase in kina. The destruction of kelp forests by the kina had subsequently reduced the biodiversity of the area as the habitats of other species had been destroyed. This reduction in biodiversity led to the Trustees of the Motiti Rohe Moana Trust ("the Trust") appealing the Bay of Plenty Regional Council's ("Council") Proposed Regional Coastal Environment Plan to the Environment Court. The Environment Court granted declarations in favour of the Trust, stating that it is lawful for the Council to prohibit fishing, among other things, to maintain indigenous biological diversity. The Attorney-General appealed the decision to the High Court.

Section 30 of the RMA was central to the Court's decision, in particular the following provisions:

30 Functions of regional councils under this Act

(1) Every regional council shall have the following functions for the purpose of giving effect to this Act in its region:

…

(d) in respect of any coastal marine area in the region, the control (in conjunction with the Minister of Conservation) of—

(i) land and associated natural and physical resources:

(ii) the occupation of space in, and the extraction of sand, shingle, shell, or other natural material from, the coastal marine area, to the extent that it is within the common marine and coastal area:

…

(vii) activities in relation to the surface of water:

…

(ga) the establishment, implementation, and review of objectives, policies, and methods for maintaining indigenous biological diversity:

…

(2) A regional council and the Minister of Conservation must not perform the functions specified in subsection (1)(d)(i), (ii), and (vii) to control the taking, allocation or enhancement of fisheries resources for the purpose of managing fishing or fisheries resources controlled under the Fisheries Act 1996.

(3) However, a regional council and the Minister of Conservation may perform the functions specified in subsection (1)(d) to control aquaculture activities for the purpose of avoiding, remedying, or mitigating the effects of aquaculture activities on fishing and fisheries resources.

The High Court on appeal held that section 30(2) precluded the Council from using its functions under sections 30(1)(d)(i), (ii), and (vii) to prohibit fishing through a plan, but that the Council may use section 30(1)(ga) to the extent it is "strictly necessary" to perform that function.

The Environment Court then issued an interim decision, subject to the Court of Appeal's decision on jurisdiction, that a rule prohibiting "the damage, destruction or removal of flora and fauna" within three marked areas near Motiti was to be included in the Plan to protect and enhance biodiversity.

The Court of Appeal held that the RMA and Fisheries Act pursue different objectives. Most importantly, the legislative history shows that Parliament chose to establish the role of maintaining indigenous biodiversity, as required to fulfil New Zealand's obligations under the Convention on Biodiversity, under the RMA, not the Fisheries Act. The Court held that it was clear that the RMA and Fisheries Act are intended to complement one another.

To determine if a control in the coastal marine area would contravene section 30(2), the Court of Appeal endorsed five indicia proposed by the Attorney-General that may provide some objective guidance. Those indicia are (at [64]):

• Necessity means whether the objective of the control is already being met through measures implemented under the Fisheries Act;

• Type refers to the type of control. Controls that set catch limits or allocate fisheries resources among fishing sectors or establish sustainability measures for fish stocks would likely amount to fisheries management;

• Scope: a control aimed at indigenous biodiversity is likely not to discriminate among forms or species;

• Scale: the larger the scale of the control the more likely it is to amount to fisheries management;

• Location: the more specific the location and the more significant its biodiversity values, the less likely it is that a control will contravene s 30(2).

Therefore, the Court concluded that (at [67]):

… The effect of s 30(2) is that a regional council may control fishing and fisheries resources in the exercise of its s 30 functions including the listed s 30(1)(d) functions provided it does not do so to manage those resources for Fisheries Act purposes…

The Court then went on to find that while the Fisheries Act makes special provision for Māori (for example, Part 9 recognises customary fishing rights), those provisions were not applicable here. Instead the Trust supported a prohibition on fishing in the three areas around Motiti. The Court held that a prohibition would align with Māori cultural norms and interests by having the effect of a rāhui and would be an expression of kaitiakitanga.

In the context of this appeal, the Court concluded that the Council may need to bear in mind the special provisions for Māori in the Fisheries Act when determining in any case if section 30(2) prevents the exercise of its functions under section 30(1)(d)(i), (ii) and (vii).

The Court also disagreed with the High Court's "strictly necessary" requirement. The Court concluded that (at [81(c)]):

… The RMA does not specify that the function of maintaining indigenous biodiversity in s 30(1)(ga) is subject to s 30(2). It is not the case that a regional council may exercise this function only when strictly necessary when dealing with fisheries resources controlled under the Fisheries Act. But any controls imposed under s 30(1)(d)(i), (ii) or (vii) are subject to s 30(2). Section 30(1)(ga) policies can be subject to s 30(2) where specified s 30(1)(d) functions are also invoked.

Finally, the Court of Appeal agreed with the High Court that declarations were not appropriate as both courts considered the issues separate from the factual setting the Environment Court considered.

The Environment Court in Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2020] NZEnvC 50 issued a final decision as to the provisions to be included in the Bay of Plenty Regional Coastal Environment Plan in relation to marine spatial provisions for Motiti. Amendments to the plan provisions were made by the Council to give effect to this decision.[8]

The Heritage New Zealand Pouhere Taonga Act 2014 and Māori interests

Otahuao Burial Ground Trust v Heritage New Zealand Pouhere Taonga [2019] NZEnvC 98

This was an appeal regarding an archaeological authority ("Authority") granted by Heritage New Zealand Poutere Taonga ("HNZPT") under the Heritage New Zealand Pouhere Taonga Act 2014 ("Act") for earthworks to upgrade the Windsor Reserve boat launching facilities at Kerikeri inlet. To construct the road, boat / car parking facilities and complete landscaping, a midden site would be modified or destroyed.

Otahuao Burial Ground Trust appealed the authority on multiple grounds, including that HNZPT had failed to (at [5]):

• recognise (as required by section 4(d) of the Act) the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tūpuna, wāhi tapu, and other taonga;
• independently consult with the appellants in accordance with the principles of the Act or in a manner which properly acknowledges their mana whenua and customary interests; and
• take into account the detrimental impacts of the proposed earthworks on the appellants' ability to exercise kaitiakitanga.

The Environment Court confirmed that it had the power to confirm, reverse, or modify the Authority in the manner it thought fit.

There were also other archaeological sites in the immediate vicinity such as fish traps and middens. The Court concluded that (at [48]):

… where there is a historic place/historic area with recognised archaeological sites in the immediate proximity that may be at risk, it is reasonable to ensure that those sites are protected from the works.

The Court recognised that Te Uri Taniwha and other hapū have an ongoing and active interest in the rich cultural history of this area and are concerned over the loss of archaeological sites. However, the Court had limited jurisdiction on this appeal and could not consider alternative sites for the works, as it could if it was an appeal against a resource consent.

The Court therefore considered that the broader cultural concerns should be addressed by the applicant, who has acknowledged a "real interest" in ensuring the development occurred appropriately by working with iwi. The Court strongly recommend establishing a liaison committee between the Council and relevant groups regarding landscaping and other aspects of the development of the site.

While the Environment Court considered that the Authority was less than ideal in its present state, it confirmed the Authority with some modifications. For example, an appropriate management plan and associated conditions were necessary to prevent disturbance of other archaeological sites. The decision was issued as an interim decision to give the applicant an opportunity to consider the changes that it would propose to make to the conditions.

Other cases of note

Burgoyne / Te Taumatua o Ngati Kuri Research Unit v Northland Regional Council [2019] NZEnvC 28

This was a decision by the Environment Court concerning appeals by the Director-General of Conservation and Mr Burgoyne against a resource consent granted to the Motutangi-Waiharara Water Users Group for water takes from sub-units of the Aupouri Aquifer in Northland.

The Court did not accept the submission that there would be no cultural effects if there are no anticipated physical effects. However, it was satisfied that (at [62]):

… the avoidance of adverse effects on the Kaimaumau-Motutangi wetland (and the Reserve Area) and the avoidance of significant effects on the balance of the area would maintain the mauri of the area, and may improve it in the longer term given the resource information that would be supplied to iwi including Ngai Takoto, Ngati Kuri and others.

The Court acknowledged that Mr Burgoyne, and his hapū Ngati Kuri, had a cultural interest in the Aupouri Aquifer and Ngāi Takoto's land. Importantly it stated that (at [70]):

… although one iwi may have had mana whenua, this does not mean that other hapu and iwi could not have a legitimate cultural relationship with the land and even utilise it from time to time and occupy it. As both Mr Burgoyne and Mr Marsden mentioned, the significant degree of inter-marriage between the various iwi and hapu also means that this outcome is more likely than not.

Mr Burgoyne also raised concerns related to the acquisition of Ngāi Takoto land by Landcorp in breach of the State-Owned Enterprises Act 1987, and the later reacquisition by Ngāi Takoto. The Court stated that it is not for the Environment Court to determine the proper ownership of land and such a dispute would need to be resolved in another forum. On appeal, the High Court agreed that such matters are more appropriately dealt with in the Māori Land Court.[9]

The Environment Court therefore directed the applicant to file its proposed consent conditions with the Court, which would then finally determine the matter.[10]

Maungaharuru-Tangitū Trust v Hastings District Council [2019] NZHC 2576

In our review of 2018, we discussed the Environment Court's interim decision regarding the activity status to be given to activities that may affect eight wāhi tapu and wāhi taonga sites in Hastings District Council's proposed district plan. With the exception of the ridgeline of Te Waka Range, the Environment Court held that restricted discretionary activity status, as sought by Maungaharuru-Tangitū Trust ("MTT"), was more than was necessary to satisfy section 6(e) of the RMA.

MTT and Mr and Mrs Raikes (private landowners who were affected by site MTT88) appealed the Environment Court's decision to the High Court. MTT argued that the Environment Court had failed to consider and apply the mandatory RMA considerations for a plan change appeal, and both appellants argued that the reasoning and explanation provided by the Court was insufficient. The parties to the appeal reached an agreement before the hearing and filed a draft consent order for the proceedings to be remitted to the Environment Court. The High Court, however, still needed to be persuaded that the Environment Court was wrong for the reasons outlined before it would give the orders sought.

The High Court began by stating that the necessary standard for the Court's reasoning would differ depending on the facts of each case and the difficulty and type of legal issue. Cooke J offered guidance on determining the necessary standard (at [21]):

… Where there is a straightforward factual dispute, no more may be required than simply stating whether the Judge believes one witness over another. Where the dispute is more complex with reasons and analysis on either side, the Judge must engage with the issues, analyse the evidence and make reasoned findings. Reasons might be abbreviated and evident without making express reference. But generally, reasons ought to state the material findings of fact and evidential support and must tell the parties why they lost or won. The reasons should be sufficient to enable those affected to understand why the decision was made and to be satisfied it was lawful.

The High Court then outlined the two necessary requirements in this case. First, the Court must make factual findings, to the best of its ability on the available evidence, as to the wāhi tapu / wāhi taonga status of the sites. Some degree of uncertainty may be permitted for certain matters. Second, the Court has to assess the potential effects of the proposed provisions in the plan on the wāhi tapu / wāhi taonga sites as recognised by the factual findings. The assessment should be as precise as possible. Therefore, the Court found that (at [27]):

…it is not appropriate for the Court to proceed straight to balancing interests without first engaging specifically with the potential impacts that activities contemplated or controlled by the proposed provisions will have on the wāhi tapu status found to exist…

The High Court then analysed the Environment Court's reasoning in regard to each of the eight sites and determined that its reasoning was insufficient. The Environment Court had often missed essential links in its chain of reasoning, including how particular activities would affect wāhi tapu / wāhi taonga sites and how the Council's preference would sufficiently meet section 6(e). More detail was required. The High Court therefore concluded (at [64]):

The key difficulty with the Environment Court’s conclusions is that the Court appears to have proceeded straight to a question of balancing the rights and interests of the private landowners and tāngata whenua without clearly identifying the precise nature of the wāhi tapu/wāhi taonga interest, the potential adverse effect of particular activities, and how the proposed provisions of the District Plan address this. The reasoning has a conclusory character, and accordingly it is potentially arbitrary. The circumstances called for a more precise analysis.

The High Court permitted the matter be remitted to the Environment Court for reconsideration but declined to make the detailed consent orders that were sought.

Pan Pac Forest Products Ltd v Hawke's Bay Regional Council [2019] NZEnvC 114

This was a direct referral to the Environment Court by Pan Pac Forests Products Ltd ("Pan Pac") to replace its existing resource consents to discharge treated wastewater and to occupy the seabed. The affected area of Hawke's Bay, known locally as Tangitu, has high historical and cultural significance to tangata whenua and tangata moana.

The Court agreed with the section 87F report on the importance of recognising and providing for the relationship of tangata whenua, hapū, and iwi with the sea, and of the possible reduced effects on mauri that would arise from the proposal, due to the potential improvement of the coastal environment. It also agreed that in relation to consultation, Pan Pac had taken all reasonable steps to consult and provide opportunities for participation in the process.

A mediated agreement was filed with the Court that included important conditions to address tangata whenua concerns, namely:

• Condition 30 required Pan Pac to establish an Environmental Trust that must include three representatives from relevant hapū, to benefit the Hawke's Bay community. One of the trust's dual purposes would be to offset cultural effects on mana whenua hapū.
• Condition 32 required Pan Pac to invite mana whenua that are members of the stakeholder forum to nominate two representatives to participate in monitoring as kaitiaki monitors.

The Court considered that these conditions, especially condition 30, would have positive effects by offsetting or compensating cultural effects. Therefore, as all issues had been resolved between the parties, the Court granted the consent subject to the attached conditions.

SKP Inc v Auckland Council [2019] NZHC 900

This was an application to the High Court by SKP to extend the time period to appeal the Environment Court's decision[11] granting consent for a marina at Kennedy Point, Waiheke Island, to Kennedy Point Boatharbour Limited ("KPB"). Shortly before the Environment Court's decision, SKP had become aware of the Ngāti Pāoa Trust Board ("Trust Board"), who was opposed to KPB's application, and had not been consulted. The Trust Board's mandate was confirmed by the Māori Land Court in 2009 as a representative authority for Ngāti Pāoa but was legally inoperative between 2014 and 2017. KPB had only consulted the Ngāti Pāoa Iwi Trust ("Iwi Trust"), established in 2013 as a post-settlement governance entity, who had supported KPB's application. SKP had also filed an application for a rehearing in the Environment Court.

SKP argued that there was a representation issue – the Environment Court had mistakenly understood the Iwi Trust to be the only representative of Ngāti Pāoa.

Gault J accepted the significance of the issues raised by SKP and stated (at [53]) that "the views of mana whenua are of key importance in the RMA process, mandated under Part 2."

It was not at issue that the general approach of the Environment Court is to rely on the information and overall stance offered by mana whenua.

The High Court concluded that the Environment Court is best placed to decide whether evidence from the Trust Board would have made a difference to its decision. It was also not in the interests of justice to extend time for the appeal as a number of factors, including the prejudice KPB would face, outweighed the factors in favour of an appeal, including the significance of cultural effects under Part 2. SKP could have been justified in some delay, but a delay of over 10 weeks was too long. Further, it was not clear that KPB knew about the Trust Board's revival, and while the Council may have known there was no evidence it had not acted in good faith. Therefore, the High Court determined that a rehearing was the appropriate option and SKP's application to extend the time period to appeal the Environment Court's decision was dismissed.

The Environment Court then refused the application for rehearing in SKP Inc v Auckland Council [2019] NZEnvC 199.

The Environment Court looked at the arguments of counsel as to mandate (and section 30 of Te Ture Whenua Maori Act 1993) and consultation. As to consultation, the Court noted that there is no express duty to consult under the RMA for a resource consent application,[12] and that while it is well known that "it is good practice to seek consultation, particularly with Maori interests" there was no basis for suggesting that KPB should have taken steps to uncover the mandate dispute (at [41] and [48]).

The Environment Court went on to highlight the importance of probative evidence and reiterated that "no person has a right of veto over an application under the RMA" (at [50]). Further the Court found that Mr Roeback, on behalf of the Trust Board, was not an appropriate person to give cultural evidence (at [58]).

Following the Environment Court's refusal of a rehearing, SKP appealed to the High Court. In SKP Inc v Auckland Council [2020] NZHC 1390 the High Court dismissed the appeal. The High Court reiterated the previous findings of the Privy Council and Supreme Court[13] that "the strong directions in Part 2 of the RMA to take Māori issues into account needed to be borne in mind at every stage of the process, substantively and procedurally"; however that was with the caveat that the section 294 test for a rehearing "requires that the evidence, rather than the issue, be important" (at [46]).

The High Court also reiterated the Environment Court's findings on who is qualified to give evidence on cultural effects (at [57] and [64]).

Other reforms and developments

Proposed RMA reform

The Minister for the Environment, Hon David Parker, announced in July 2019 that the Government had launched a comprehensive overhaul of the RMA and appointed a Panel to carry out a review of the resource management system, chaired by Hon Tony Randerson QC. The Panel issued an issues and options paper in November 2019 and, following a period of consultation, released its report, New Directions for Resource Management in New Zealand, in June 2020.

The Panel's Report recommends three new pieces of interrelated legislation as follows:

• The repeal of the RMA and its replacement with new legislation to be named the Natural and Built Environments Act. This would have a substantially different approach but would incorporate some of the key principles of the RMA that remain appropriate.
• Enactment of a Strategic Planning Act.
• Enactment of a Managed Retreat and Climate Change Adaptation Act.

As part of the above framework, the Panel's Report also recommends specific amendments to recognise Māori rights and interests and the principles of Te Tiriti. The Panel commented that:

the Panel’s firm view is that a future resource management system should provide a direct role for Māori in decision-making and in the design of measures and processes to give effect to the principles of Te Tiriti. We also recommend the creation of a National Māori Advisory Board with a range of functions including providing advice to government and oversight of the resource management system from the perspective of mana whenua.

National Policy Statement on Urban Development 2020 ("NPS-UD")

The NPS-UD came into effect on August 2020, replacing the National Policy Statement on Urban Development Capacity 2016. The NPS-UD requires councils to ensure that development occurs in a way that takes into account the principles of the Treaty, including ensuring hapū and iwi involvement in the preparation of planning documents and undertaking effective consultation in accordance with tikanga Māori (policy 9). Policy 1(a)(ii) also requires that planning decisions contribute to well-functioning urban environments, which as a minimum enable Māori to express their cultural traditions and norms.

Proposed National Policy Statement for Indigenous Biodiversity

In November 2019 the Ministry for the Environment proposed a National Policy Statement for Indigenous Biodiversity, which builds on a draft created by the Biodiversity Collaborative Group. The consultation period closed on 14 March 2020. Of note is the fundamental concept of Hutia Te Rito^[14] which recognises the role of Māori as stewards or kaitiaki of indigenous biodiversity. When Māori undertake activities they have a responsibility to provide not only for te hauora o te tangata (the health of the people) but also for –

• te hauora o te koiora (the health of indigenous biodiversity), and
• te hauora o te taonga (the health of species and ecosystems that are taonga), and
• te hauora o te taiao (the health of the wider environment).

These elements are intrinsically linked. Any use and development that degrades the mauri and hauora of indigenous biodiversity also degrades the hauora of the people.

COVID-19 Recovery (Fast-track Consenting) Act 2020

In response to the economic and social impacts of the global pandemic, this Act was passed under urgency to enable certain infrastructure projects to be constructed and operational as soon as possible. To use the fast-track processes in the Act, projects must be either "listed" or "referred". For both listed and referred projects the Act provides significant protections for Māori interests, and section 6 of the Act requires persons acting under the Act to do so in a manner that is consistent with both the principles of the Treaty of Waitangi and Treaty settlements.

Listed projects are set out in Schedule 2 of the Act and include several Papakāinga Developments supported by Te Puni Kōkiri. Under clause 34 of Schedule 6, one of the only two reasons to decline a consent application or cancel a notice of requirement for a listed project is if the panel considers that doing so would be inconsistent with section 6 (which requires consistency with the principles of the Treaty of Waitangi and Treaty settlements).

Other projects must apply to the Minister to be "referred", which is at the Minister's discretion. Before making a decision on referral, section 17 provides that in order to satisfy the obligation under section 6, the Minister must obtain and consider a report prepared by the Ministry for the Environment in consultation with the Office for Māori Crown Relations – Te Arawhiti. The report must include certain information, including the Treaty settlements that relate to the project area and any court orders that recognise, in relation to the project area, protected customary rights or customary marine title.

Marine and Coastal Area (Takutai Moana) Act 2011

The High Court completed its third round of case management conferences in June and July 2020. While progress of the bulk of the applications is slow, certain of the priority applications have either commenced (the Edwards application) or are scheduled for hearing (including the Clarkson and Reeder applications).

Treaty settlement milestones

In 2019 and 2020, there were significant steps forward in a number of Treaty settlements. A deed of settlement was signed by the Crown and Ngāti Hinerangi, and another by the Crown and Moriori. Agreements in principle were also reached between the Crown and Te Whānau a Apanui, and Whanganui Lands. The Crown recognised the mandate for Waikato-Tainui (remaining claims) and Ngāti Ruapani, the latter of which also signed terms of negotiation.

The Ngāti Rangi Claims Settlement Act 2019 was enacted and Treaty settlement legislation was introduced in respect of the Ngāti Hinerangi, Ahuriri Hapū, and Moriori settlements.

In addition, Te Ture Haeata ki Parihaka 2019 / Parihaka Reconciliaton Act 2019 was enacted as well as Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019.

Developments to watch for in late 2020/2021

• Application of the Port Otago decision
• The likely emergence of a finalised National Policy Statement for Indigenous Biodiversity, and how the fundamental concept of Hutia Te Rito is incorporated and interpreted
• Application of Te Mana o te Wai in the NPSFM 2020
• The new Government's response to the RMA Review Panel's Report and agenda for RMA reform
• Decisions under the Marine and Coastal Area (Takutai Moana) Act 2011
• More Treaty settlements entering or progressing through legislative stages, such as:
  • Ahuriri Hapū Claims Settlement Bill
  • Ngāti Hinerangi Claims Settlement Bill
  • Maori Commercial Aquaculture Claims Settlement Amendment Bill
  • Moriori Claims Settlement Bill

This article was prepared by Chelsea Easter, Alanna Garland Duignan, Frances Wedde, Dave Randal, and others in Buddle Findlay's resource management and Māori law team, based in Wellington. Buddle Findlay acts for clients directly involved in two cases discussed in this article, namely Te Runanga o Ngati Awa v Bay of Plenty Regional Council [2019] NZEnvC 196 and Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203.

Notes

[1] See SKP Incorporated v Auckland Council [2018] NZEnvC 81 for the original decision of the Environment Court.

[2] Note that there is also no duty to consult for a notice of requirement. See RMA, s 36A.

[3] Environmental Defence Society of New Zealand v The King Salmon Company Ltd [2014] NZSC 38.

[4] Environmental Defence Society v Otago Regional Council [2019] NZHC 2278.

[5] Royal Forest and Bird Protection Society Inc v Bay of Plenty Regional Council [2017] NZHC 3080.

[6] See Port Otago Ltd v Environmental Defence Society Inc [2020] NZCA 246. Leave to appeal directly to the Supreme Court was refused (see Port Otago Ltd v Environmental Defence Society Inc [2020] NZSC 38).

[7] Note that 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.

[8] Taranaki-Whanganui Conservation Board v Environmental Protection Authority [2018] NZHC 2217.

[9] Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2020] NZSC 67.

[10] Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2020] NZEnvC 73.

[11] Burgoyne / Te Taumatua o Ngati Kuri Research Unit v Northland Regional Council [2020] NZHC 189 at [21].

[12] The conditions were confirmed by the Court in Burgoyne / Te Taumatua o Ngati Kuri Research Unit v Northland Regional Council [2019] NZEnvC 137.

[13] See McGuire v Hastings District Council [2002] 2 NZLR 577 (PC) at [21]; and Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2014] NZSC 38, [2014] 1 NZLR 593 at [88]; referring particularly to ss 5, 6(e), 7(a) and 8 of the RMA.

[14] Hutia Te Rito is based on the whakatauki: Hutia te rito o te harakeke Kei hea te kōmako, e kō? Kī mai ki ahau He aha te mea nui o te ao? Māku e kī atu he tangata, he tangata, he tangata / When the centre of the flax bush is picked Where will the bellbird sing? You ask me What is the greatest thing in the world? My reply is It is people, it is people, it is people.

Follow the links below for the previous 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; (2017) April Māori LR; (2018) March Māori LR; and (2019) April Māori LR.

Author: David Randal

David is a partner at Buddle Findlay working from the Wellington office. David specialises in resource management, environmental and conservation law, public law, general civil litigation, and Māori law.

View all posts by David Randal