March 2021 Māori Law Review

Māori interests in natural resource management: latter half of 2020 in review

Dave Randal, Chelsea Easter, Avikesh Chandra, Manahi Moana, Honor Kelly, and Eilís Donnelly review legal developments from the latter half of 2020 relating to Māori interests in natural resources.

Overview

The Buddle Findlay team is pleased to present this review of resource management case law and related developments of 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 lockdown-related disruption, our previous review discussed developments during 2019 and the majority of 2020. This article covers key cases from the last six months, summarises current developments in Resource Management Act 1991 (RMA) policy and legislative reform, briefly updates readers on Treaty settlement milestones, and offers thoughts on developments to watch for in the year ahead.

Resource management law and practice are constantly evolving, but this article is written at a particularly dynamic and complex point in time. To take freshwater management as an example, regional councils updating their plans to give effect to national policy direction issued in 2014 and 2017 now have to consider further fundamental changes introduced in 2020, as well as navigate a new statutory decision-making process for freshwater planning. Iwi, hapū, and other interested parties, many of whom have invested considerable time and other resources in planning processes that are not yet complete, must also work through the implications of these changes. Shortly they will probably also have to deal with the added complexity of three new pieces of legislation replacing the RMA itself.

Some of the recent decisions discussed below relate to this dynamic area of freshwater management. Other cases highlight: the excellent community outcomes that can arise when infrastructure projects are developed in partnership with iwi, provide guidance on difficult issues relating to mana whenua status, give a working example of planning to protect cultural landscapes, and explore the interaction between environmental legislation and co-management arrangements implemented through Treaty settlements.

Developments in relation to freshwater management

Last year's review noted the emergence of an updated National Policy Statement for Freshwater Management (NPSFM 2020) and associated national environmental standards (NES Freshwater), the context provided by the Waitangi Tribunal's ongoing Wai 2358 inquiry, and cases regarding freshwater planning (Aratiatia Livestock Ltd) and a water bottling proposal opposed by iwi (Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council).

Regulating activities associated with fresh water continues to be the subject of considerable policy-making attention, in an effort to reverse the widespread degradation of the health of water bodies.

There is much information for practitioners to digest. For one, Te Mana o Te Wai provides a relatively new touchstone for substantive decision-making. The concept refers to "the fundamental importance of water and recognises that protecting the health of freshwater protects the health and well-being of the wider environment", and puts in place a hierarchy of obligations that prioritises the health and well-being of water bodies and freshwater ecosystems above people's health needs and other social, economic, and cultural drivers.

Moreover, a new freshwater planning regime is intended to streamline the processes by which plans will give effect to the NPSFM 2020. The process will be overseen by a Chief Freshwater Commissioner, Professor Peter Skelton, and will involve decisions being made by freshwater hearings panels, generally with five members, one of whom must have an understanding of tikanga and mātauranga Māori and is to be nominated by tangata whenua.

The Waitangi Tribunal undertook Stage 2 of its Wai 2358 inquiry in parallel to the Crown developing freshwater management policy, and its influence can be seen in some elements of the recent reforms. Stage 3 of the inquiry is expected to start shortly, focusing on geothermal resources.

Many practitioners will be closely monitoring yet another important development, namely the claim brought by Ngāi Tahu in the High Court, yet to be heard, seeking recognition of the rangatiratanga of Ngāi Tahu over fresh water in its takiwā.

While many of these developments will play out over the coming year, a number of decisions from late in 2020 also illustrate this dynamic context.

The Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2020] NZEnvC 180

Bay of Plenty Regional Council developed Plan Change 9 (PC9) to its Regional Natural Resources Plan, to insert provisions giving effect to the 2014 version of the NPSFM. A draft was consulted on in August 2015, PC9 was notified in October 2016, Council-level hearings took place in early 2018, and the Council notified its decision in October 2018. Fourteen appeals against that decision were lodged with the Environment Court, and Court-assisted mediation took place during 2019.

Late in 2019, Council officers became concerned about the utility of proceeding with PC9, given that the issues remaining in dispute were significant and would require costly hearings and determination by the Court, and in light of the uncertainty created by central government signalling imminent further policy changes. Those changes ultimately emerged in August 2020 as the NPSFM 2020.

In the meantime, the Council had resolved to withdraw PC9, and that decision had been publicly notified. Clause 8D of Schedule 1 to the RMA allows a council to withdraw a plan change where there is a live appeal before the Environment Court but the Court hearing has not yet commenced.

While iwi had been critical of elements of PC9, the Council's decision to withdraw it equally attracted criticism. The Trustees of the Motiti Rohe Moana Trust sought declarations from the Environment Court that Council's decision to withdraw PC9 had breached the RMA. The applicants pointed to:

  • the extensive resources dedicated by tangata whenua to participating in the PC9 process, which would be wasted by allowing its withdrawal;
  • the significance of water to tangata whenua;
  • the importance of RMA planning processes in fulfilling the Crown's promises in Te Tiriti o Waitangi regarding water;
  • the historical failures by the Crown to adequately perform functions relating to water;
  • the more directive approach regarding fresh water in recent higher-order planning documents;
  • what they considered to be significant gaps within the operative regional plan provisions; and
  • an alleged lack of evaluation by the Council of Treaty principles and lack of consultation with tangata whenua regarding how the withdrawal would affect Māori.

Despite those factors, this case largely turned on the breadth of the Environment Court's jurisdiction to make declarations under section 310 of the RMA. The High Court had previously held that a council's power to withdraw a plan change is a mechanical function not requiring prior notice to, submissions from, or a right of appeal by affected persons. In that context, the Court in this case considered whether it is empowered to review the exercise of that power by a council, and to make related declarations.

The Court held that its jurisdiction does not extend that far. In summary, it found that:

  • the Court's power to make declarations stems only from section 310 (i.e. it has no inherent jurisdiction, unlike the High Court), and that provision – including the catch-all in section 310(h) – is not sufficiently broad to allow judicial review of an administrative action;
  • nor does the Court have a general supervisory function to review administrative acts by a council;
  • it is a council's function to make and change plans under the RMA; while the Court can have a role in the substantive outcome of plan processes (i.e. on appeal), its power to make declarations in respect of administrative decisions is very limited (to "stating what can be done rather than what should be done"); and
  • considerations of fairness and reasonableness, while inevitably applied by the Court in the exercise of its judgment in all cases, do not give the Court a power to review an administrative decision.

The Court also considered whether clause 8D of Schedule 1 should be interpreted by reference to Part 2 of the RMA, and in particular the requirement (in section 8) to take into account the principles of Te Tiriti o Waitangi. The Court accepted that section 8 does guide interpretation, but was not persuaded that the withdrawal of PC9 had left a gap in the planning instruments that was contrary to Treaty principles. The Court observed that the Council would have to prepare another plan in order to give effect to the NPSFM 2020, and tangata whenua would have a right to participate in that process, consistent with the principles of the Treaty. Accordingly, the Court held that section 8 did not have the effect of expanding the Court's jurisdiction under section 310 to allow an administrative action of the Council to be reviewed.

As such, the Environment Court ruled it had no jurisdiction to make the orders sought, and the application was refused.

The Trustees have since appealed the decision to the High Court, and have also brought judicial review proceedings challenging the Council's exercise of its function under clause 8D. The hearing is expected to take place later this year.

Federated Farmers of New Zealand Inc v Bay of Plenty Regional Council [2020] NZEnvC 213

Technical questions also arose in respect of Bay of Plenty Regional Council's next proposed change to its Regional Natural Resources Plan. Plan Change 10 (PC10) relates to nutrient management in Lake Rotorua, and seeks to limit the amount of nitrogen entering Lake Rotorua to a cap specified in the Council's Regional Policy Statement (RPS).

This decision of the Environment Court finalised the provisions of PC10. An earlier interim decision, issued in 2019, had considered the most appropriate method to allocate nitrogen to different land uses.

The Court now considered the issues of:

  • what provision should be made (in terms of a nitrogen allocation) to enable development of Treaty settlement land (such as converting forestry or bush-clad land to land used for papakāinga, marae, and associated housing and other facilities) – all parties agreed that there should be such an allocation, but disagreed as to the amount; and
  • the extent to which PC10 must give effect to the new NPSFM 2020 and NES Freshwater.

As to the first issue, the Court restated some relevant conclusions from its earlier interim decision. Amongst these were that:

  • PC10 should recognise potential uses of Treaty settlement land in an appropriate way and make nitrogen allocations for such uses.
  • An allocation for Treaty settlement land would require a further reduction in the allocation for the dairy and dry stock sectors (because the catchment is over-allocated and the nitrogen cap exceeded), but that it would not be large given that the potential uses of settlement land identified generally had low associated discharges of nitrogen.

The Court also emphasised the unique circumstances of the Lake Rotorua groundwater catchment, and cautioned against applying its reasoning uncritically to issues elsewhere in Aotearoa.

The Court began by examining the extent to which the nitrogen amounts allocated for use of settlement land should be consistent with the amounts already allocated (by an Independent Hearings Panel (IHP)) for land held under Te Ture Whenua Māori Act 1993 (TTWMA). The Court observed that the RPS focuses on the latter and does not provide specifically for Treaty settlement land, so concluded that the allocation for TTWMA land should not be used as a starting point.

In determining an appropriate allocation, the Court noted the purposes for which the settlement land was envisaged to be used and took into account various key considerations, including:

  • what allocation would be sufficient to enable 'credible land use' within the time horizon of PC10; and
  • the need to provide an equitable balance between the interests of owners of settlement land and those of owners of dairy and dry-stock land who would have their allocation reduced.

The Court undertook a detailed analysis of the evidence and fixed a reallocation with respect to settlement land that it considered gives effect to the RPS and sections 6(e), 7(a), and 8 of the RMA. A common percentage reduction was applied to dairy and dry stock land in the catchment. This reallocation will come into effect in 2032, unless there is an earlier surrender of nitrogen discharge allowance relating to other existing uses (i.e. if existing farms convert to uses that have lower associated nitrogen discharges).

The 2032 date stems from the RPS, but was also relevant to the way in which the Court addressed the new NPSFM 2020 (and NES Freshwater), which is noteworthy given other ongoing planning processes around Aotearoa.

As a starting point, given that the NPSFM 2020 and NES Freshwater are much broader in scope than the nitrogen load on Lake Rotorua, and given how far PC10 was through the planning process, the Court acknowledged the limited extent to which it could implement the new documents through its decision (beyond some minor practical tweaks to PC10, which it duly made). The Court noted that the Council would have to change the plan further to give effect to the balance of the documents.

The Court did find, however, that policy 11 of the NPSFM 2020, requiring fresh water to be "allocated and used efficiently, all existing over-allocation (…) phased out, and future over-allocation (…) avoided" underscored that no new allocation of nitrogen for uses of Treaty settlement land could be made until existing over-allocation had been phased out, which in the case of this catchment will be 2032 (unless some nitrogen discharge allowance is surrendered beforehand).

Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388

In last year's review we discussed the Environment Court's interim decision in Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, in which the Court (in a majority decision) dismissed appeals against consents allowing the expansion of an existing water bottling operation near Ōtakiri.

Te Rūnanga o Ngāti Awa (TRONA) appealed that interim decision to the High Court, and were supported by further appeals from Ngāti Pikiao Environmental Society (NPES) and Te Rūnanga o Ngāi Te Rangi Iwi Trust (TRONIT). Sustainable Otakiri Incorporated (SOI), a society formed by neighbours to the plant, also appealed.

The High Court, in determining whether the Environment Court had erred, analysed the relevance of 'end use' effects on the environment of a proposed activity – that is, consequential effects stemming from, rather than arising directly from, the consented activity – in resource consent processes under the RMA. At issue in this case were 'end use' effects of taking groundwater, said to arise from:

  • the export of bottled water, in terms of negative effects on te mauri o te wai and the ability of mana whenua to be kaitiaki of the exported water; and
  • the use of plastic bottles.

The High Court dismissed the appeals. In doing so, the Court worked through various issues, but the key ones arising from the iwi appeals relating to the regional consents were whether the Environment Court majority erred:

  • in excluding consideration of the end use of the water take; and
  • in concluding that the regional plans addressed issues relating to the taking of water from aquifers comprehensively, and consequently that recourse to Part 2 of the RMA was not required.

End use

The relevance of end use was at issue before the High Court because the Environment Court majority had concluded that the end uses of putting the water in plastic bottles and exporting it from Aotearoa were matters outside the scope of consideration of the resource consent to take water from the aquifer under section 104(1)(a) of the RMA.

Gault J began by traversing the relevant legal principles. His Honour noted (as the Environment Court had) that while the courts sometimes considered the consequential environmental effects of an activity when deciding whether to grant consent, this is subject to limits of nexus ('connection') and remoteness. The complexity, his Honour noted, "lies in the application of these concepts".

Gault J considered separately the end uses of exporting bottled water and inappropriate disposal of plastic bottles.

With regard to the end use effects of exporting bottled water, the High Court held that the Environment Court's conclusion that such effects were beyond the scope of section 104(1)(a) "went too far". His Honour considered there to be a nexus between the water take and the export of water in plastic bottles. Unlike in Buller Coal, where the effects of burning coal overseas were said to be independent from the activity of forming an access road to a coal mine, any effects on the environment of exporting water are not independent from their extraction.

However, although the Environment Court had determined these effects to be outside its scope, it had nonetheless gone on to consider the (competing) evidence before it regarding cultural effects of exporting the bottled water drawn from the aquifer. His Honour held:

"Given the nature of the effects – metaphysical cultural effects on the iwi appellants – the majority was necessarily considering the effects in New Zealand. Further, the majority’s factual finding – that there is no loss of mauri from the water as the water remains within the broad global concept of the water cycle and is returned to Papatūānuku irrespective of where it is used – applies not only to exports but also to removal of water from the local area to other parts of New Zealand."

As a result of these factual findings, the High Court found there to have been no error of law as the majority's legal conclusion that the effects of export were beyond scope was not material to its decision.

TRONIT argued that the Environment Court's findings as to cultural effects were wrong because the Court had erred in accepting the evidence of the witness called by the consent applicant, a Ngāti Awa kaumātua and tikanga expert, over that of another Ngāti Awa kaumātua and tikanga expert called by TRONA. The Court did not accept that argument, which it considered to be founded in a question of fact rather than a question of law and so not amenable to a general appeal.

When considering the application of the nexus and remoteness principles to the effects of plastic bottles, Gault J found the Environment Court did not err.

The effects of exported plastic bottles discarded overseas were too remote because it is "implausible to apply sustainable management principles to overseas jurisdictions."

The effects of discarding plastic bottles in New Zealand required more detailed consideration, and Gault J noted a number of factors, including that it is reasonably foreseeable (if not inevitable) that some plastic bottles will be discarded and that such effects on the environment are not necessarily intangible. However, littering of plastic bottles is ultimately an activity prohibited by the Litter Act 1979. Weighing up the various factors, his Honour held that, "as a matter of fact and degree" in this case, the adverse effects on the environment of consumers discarding plastic bottles were too indirect or remote to require further consideration in the context of this application for consent to take groundwater.

Recourse to Part 2

Gault J also found that the applicable regional plans provided adequate coverage of sections 6(e), 7(a) and 8 of the RMA, in that they recognise and provide for the relationship Māori have with water and contain comprehensive provisions regarding kaitiakitanga. Further, in relation to section 8 of the RMA, the planning documents themselves require consideration of the principles of Te Tiriti o Waitangi / Treaty of Waitangi.

Consequently, the High Court held that the Environment Court majority had correctly concluded that assessing the consent application directly against the provisions in Part 2 of the RMA would not add anything to its evaluation. The Court observed that, due to the recent emergence of the NPSFM 2020, the plans are 'incomplete' in the sense that they do not yet give effect to that document. But the fact that planning documents are incomplete does not require resort to Part 2 in and of itself when considering a consent application; in that process, regard must also be had to the NPSFM 2020 directly.

The three iwi involved in the litigation have sought leave to bring further appeals to the Court of Appeal.

Waikato Regional Council transfer of water monitoring role to iwi

Another notable development in late 2020 was a decision by Waikato Regional Council formally to transfer certain water quality monitoring functions within the Lake Taupō catchment to the Tūwharetoa Māori Trust Board. The Trust Board is the legal owner of the bed of the Lake and parts of the associated rivers in the catchment (as well as the associated water column and airspace).

This is understood to be the first time that a council has invoked section 33 of the RMA – which allows council functions to be transferred "to another public authority" – to transfer functions to an iwi authority. In doing so, the Council acknowledged the ancestral relationship of the iwi with Lake Taupō and the local knowledge and the technical skill and expertise held within the Trust Board.

Mana whenua status

Director-General of Conservation v Taranaki Regional Council [2020] NZHC 3159

Last year's review highlighted the Environment Court's interim decision in Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203, which related to a proposed roading project in Taranaki, Te Ara o Te Ata: Mount Messenger Bypass.

That interim decision was appealed to the High Court, which issued its judgment in late 2020. The High Court's judgment deals again with the issue of mana whenua status in the Mangapepeke Valley, where the project is to be located. In short, the High Court held that the Environment Court had not erred in finding that the appellants, Poutama Kaitiaki Charitable Trust (Poutama) and Mr and Mrs Pascoe (who are affected landowners), have no cultural connection to the proposed affected project land that is relevant under the RMA.

The project involves replacement of a 7.4-kilometre stretch of road, which will require acquisition of 11.2 hectares of land belonging to Mr and Mrs Pascoe and temporary use of 13.5 hectares of their land. The Pascoes have lived on the property for over 30 years, and Mr Pascoe's family acquired the farm 65 years ago. They asserted that their interests in the land require recognition under Part 2 of the RMA, as they are stewards of the land and as Mrs Pascoe has a whakapapa connection to Ngāti Rahiri (a hapū unassociated with Ngāti Tama, which holds mana whenua over the area and supports the project).

Poutama joined the Pascoes in the proceedings. Poutama is a Māori grouping claiming tangata whenua and other cultural connections to the project area.

The Environment Court interim decision, discussed in the previous edition of this article, found neither Mrs Pascoe nor Poutama had established the required cultural connection as relevant under sections 6(e), 7(a), and 8 of the RMA, as there was no evidence to validate their claims.

On appeal, the High Court found there to have been no error of law. Noting that the Court must be vigilant against factual findings made by the Environment Court being relitigated, Grice J held there had been "ample evidence" upon which the Environment Court based its findings. Further, the Environment Court had been correct not to take at face value (or as determinative) Poutama's own assertions of mana whenua and kaitiaki status.

In this context, her Honour considered the decision in Ngāti Maru Trust v Ngāti Whātua Ōrākei Whai Maia Ltd (Ngāti Maru), discussed in last year's review. In Ngāti Maru, the High Court held that where iwi or hapū claim that a particular outcome is required to meet the directions in sections 6(e), 7(a), and 8 of the RMA in accordance with tikanga Māori, RMA 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 obligations to Māori under the RMA.

Poutama and the Pascoes argued that Ngāti Maru supported their case that the Environment Court had erred in taking into account external evidence in ascertaining Poutama's customary interests, as opposed to focusing solely on evidence of Poutama tikanga. Grice J noted that Ngāti Maru was concerned with an issue which did not arise in the current case: divergent claims between tribal groupings based on recognised tangata whenua interests. The High Court in Ngāti Maru did refer to the methodology ­(the 'rule of reason' approach) adopted by the Environment Court in concluding Poutama and/or the Pascoes had not established any recognisable cultural connection. Thus, insofar as Ngāti Maru was relevant to affirming the jurisdiction of the Environment Court to determine the relative strengths of hapū/iwi status in an area affected by a proposal and the correct methodologies in doing so, Grice J considered it supported the findings of the Environment Court.  

Grice J also emphasised the distinction between kaitiakitanga and stewardship under the RMA. Section 6(e) of the RMA refers to an "ancestral relationship" with the land. To extend the application of section 6(e) to Māori (or other) claimants who had not established such an ancestral connection would "diminish the value and importance of those rights".

Since the High Court's judgment was issued, the appellants have applied unsuccessfully for the judgment to be recalled, and are seeking to take further steps in the higher courts. The Environment Court has also recently issued a second interim decision confirming the grant of consents (and a modification to the relevant designation) for the project, which has also been appealed.

Partnership with iwi

Waka Kotahi NZ Transport Agency v Manawatū-Whanganui Regional Council [2020] NZEnvC 192

Two other recent decisions in respect of Waka Kotahi projects illustrate the myriad benefits of projects being developed in partnership with local iwi.

One relates to Te Ahu a Turanga: Manawatū Tararua Highway, a project to replace the section of State Highway 3 through the Manawatū Gorge (which was closed by slips and ongoing land instability in 2017) with a new road across the Ruahine Range, between Ashhurst and Woodville.

Since an early stage of the project, Waka Kotahi has worked in partnership with four iwi groupings who identify interests in the project area. Those partnerships, and the information provided by iwi as to how the project should best traverse a highly valued cultural landscape, were instrumental in designations being obtained for the project in 2019 and regional resource consents being granted by the Environment Court (on direct referral) following a one-day hearing in late 2020.

In its decision, the Court noted how the participatory and comprehensive nature of these partnerships has ensured that the interests and values of the four iwi groupings – Rangitāne o Manawatū, Rangitāne o Tamaki Nui-ā-Rua, Ngāti Kahungunu ki Tamaki Nui-a-Rua, and Ngāti Raukawa ki Te Tonga / Ngāti Kauwhata – will continue to be met through their ongoing involvement in the project. The Court noted (among other measures) that the four iwi groupings have formal roles in the alliance that has designed and is now building the new road, are represented on the Project Governance Board, have appointed Kaimahi to deal with day-to-day demands of the Project, and have established an Iwi Working Group to provide management-level direction to the Kaimahi and wider alliance design team.

Consequently, while all parties accepted that the project will adversely affect intrinsic cultural values in a deeply significant landscape, the Court noted the iwi partners' support of the project, including evidence given for Rangitāne o Manawatū that it was looking forward to continuing to work with the Alliance to "realise the Treaty articles of partnership and protection in the development of the project" and for Ngāti Raukawa that the partnership provides a "model for future infrastructure projects".

Ngā Ūranga ki Pito-one Shared Path – Decision under the COVID-19 Recovery (Fast-track Consenting) Act 2020

Waka Kotahi has also entered into successful partnerships with iwi in relation to the Ngā Ūranga ki Pito-one Shared Path project in Wellington. This project runs along the coast of Te Whanganui-a-Tara, an environment highly significant to Taranaki Whānui ki te Upoko o Te Ika and Ngāti Toa Rangatira.

These partnerships culminated in the creation of a Mana Whenua Steering Group (MWSG) to guide the development of the project and represent the interests of mana whenua throughout the conceptual, consenting, detailed design, and construction phases. The 'Te Ara Tupua Kaitiaki Principles' were developed to ensure that mātauranga Māori has been, and will continue to be, central in the project's design, and various consent conditions enshrine ongoing guidance by the MWSG throughout the remaining phases of the project.

The project was consented using the new fast-track process, discussed further below. In its decision the expert consenting panel described the engagement by Waka Kotahi with mana whenua as "exemplary" and a "resounding success".

As with Te Ahu a Turanga, the partnerships between Waka Kotahi and iwi in relation to the Ngā Ūranga ki Pito-one Shared Path have led to development of a culturally appropriate infrastructure project that will provide significant flow-on benefits for iwi.

Part 2 of the RMA

Self Family Trust v Auckland Council [2020] NZEnvC 214

This case is the latest in a series of decisions dealing with the potential urbanisation of the Pūkaki Peninsula, following a request by the applicant for the Auckland Unitary Plan's (AUP) Rural Urban Boundary (RUB) to be extended to include the peninsula, with a Future Urban Zone (FUZ) applied to that land.

The Council and mana whenua, represented by Te Ākitai Waiohua, opposed this outcome. The independent hearing panel deciding on the AUP had recommended the zone should extend to the peninsula, but the Council had declined to accept this recommendation; a series of appeals and remissions to the Environment Court ensued, which are important context to this latest decision.

The High Court had directed the Environment Court to:

  • revisit evidence and its conclusion on certain issues, adopting the High Court's interpretation of the relevant policies in the RPS;
  • consider whether to allow additional evidence in relation to the RPS policies; and
  • reconsider its overall findings taking into account the evidence called before it in 2018, any new evidence permitted to be called, the relevant statutory considerations, and the High Court's interpretation of the RPS policies.

A core consideration for the Environment Court was how the AUP approached future development of land. The development capacity of the land in question was not disputed, but at issue was whether that capacity was great enough to justify categorisation of the area for greenfields development.

In short, the Court arrived at the same overall outcome as it had previously, namely to exclude the Pūkaki Peninsula from the RUB on the basis of the significant cultural heritage and landscape values held by mana whenua over the area (only some of which were expressly recognised in the AUP). The Court urged greater consideration to be given to expressly protecting other values expressed by Te Ākitai Waiohua.

Interpretation of Treaty settlement and conservation legislation

Norman v Tūpuna Maunga o Tāmaki Makaurau Authority [2020] NZHC 3425

As practitioners will be well aware, the relatively recent implementation of co-governance, co-management, or co-ownership arrangements through Treaty settlements is an interesting area with important implications for processes under the RMA and other environmental statutes.

Such arrangements have been an increasingly common feature of both iwi-specific settlements – with well-known examples including the establishment of the Waikato River Authority, the Te Urewera Board, and arrangements in respect of the Whanganui River – and collective redress, with one such example being the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (Collective Redress Act).

Under the Collective Redress Act, the fee simple estate in land associated with 14 Tūpuna Maunga was vested in the 13 iwi and hāpu of Ngā Mana Whenua o Tāmaki Makaurau (Ngā Mana Whenua), with the Tūpuna Maunga o Tāmaki Makaurau Authority (Maunga Authority) established as the statutory co-governance authority for the Tūpuna maunga.

How these arrangements interact with other environmental management legislation was recently considered by the High Court in Norman v Tūpuna Maunga o Tamaki Makurau Authority.[1] The Court reviewed a decision by the Maunga Authority to remove 345 exotic trees from Ōwairaka/Te Ahi-kā-a-Rakataura/Mt Albert (Ōwairaka) and to replant 13,000 native plants. The appellants, a group of local residents, argued that the Maunga Authority had acted unlawfully as the decision did not comply with sections 17 and 42 of the Reserves Act 1977. They alleged the decision to have been contrary to the "protection and pleasantness" of the existing natural environment, and that the decision was not "necessary" for the "proper management or maintenance of the reserve".[2] The applicants asserted that the Collective Redress Act was of limited relevance, insofar as it confirmed Ōwairaka was subject to the Reserves Act regime.

The High Court rejected this interpretation, and found that the Reserves Act must be read in the context of the Collective Redress Act, which establishes a "clear regime for the Maunga Authority to govern the Tūpuna Maunga, including the exercise of mana whenua and kaitiakitanga by Ngā Mana Whenua".[3]  Gwyn J considered the applicants' position to risk giving only "lip service" to the Collective Redress Act, which would thwart the purpose of the settlement.[4]

The Collective Redress Act contains an acknowledgement by Parliament "that the Maunga are taonga and that iwi and hāpu have a unique relationship with the Maunga".[5] Under section 109(2), the Maunga Authority must have regard to the spiritual, ancestral, cultural, customary, and historical significance of the maunga to Ngā Mana Whenua. Positioning this provision as the starting point for the Court's decision, her Honour concluded the decision taken by the Maunga Authority was "plainly open" to it.[6]

One argument put forward for the Maunga Authority was that section 4 of the Conservation Act 1987, requiring decision-makers to give effect to the principles of Te Tiriti o Waitangi, applies to the Reserves Act 1977. Gywn J did not find it necessary to determine this issue, as her Honour considered the position arrived at by an analysis of the Reserves Act, read in the context of the Collective Redress Act, would be no different than the outcome arrived at by application of section 4 of the Conservation Act to the Reserves Act. The Collective Redress Act reflects the Treaty principles of redress and active protection, and the co-governance structure reflects partnership.[7] Her Honour noted that section 4 of the Conservation Act "could have greater relevance to a future case".[8]

This decision has been appealed to the Court of Appeal with a hearing set down for later this year.

Minister of Land Information v Dromgool [2021] NZCA 44

This is the latest in a series of cases considering the role and obligations of the Minister for Land Information (the Minister) under section 186(1) of the RMA, in particular the interaction between the Public Works Act 1981 (PWA) and the RMA.

Section 186(1) provides for a network utility operator to apply to the Minister to have land required for a project acquired or taken under the PWA as if it were a government work. Here, Top Energy Ltd (TEL) sought to acquire easements under section 186(1) to enable construction of an electricity transmission line between Kaikohe and Kaitaia. The initial evaluation identified a route passing over land owned by the Office of Treaty Settlements (OTS; now Te Arawhiti – the Office for Māori Crown Relations) and land-banked for potential use as redress in settling historical Treaty claims. The land block is part of the tūrangawaewae of Te Whiu, a hapū of Ngāpuhi. As the sole remnant land available of the original ancestral lands of Te Whiu, it is important for the purposes of future cultural redress.

As OTS refused to grant easements over this land, TEL decided on an alternate route over privately held land.

The Minister gave her agreement, which the affected landowners objected to in the Environment Court. The Environment Court, which is required to write a report under section 24(7) of the PWA if there are any objections, considered the Minister's powers under section 186(1) to be "fully discretionary" and confirmed the Minister's decision.

The objectors appealed the report to the High Court. Courtney J allowed the appeal, finding that the section 186 discretion is not unfettered. Her Honour observed that a statutory power is subject to limits, even if conferred in unqualified terms, and Parliament must be taken to have intended that a broadly framed discretion should always be exercised to promote the policy and objects of the legislation. Her Honour placed significance on the finding that section 186 of the RMA is not the source of the Minister's power to take or acquire land; that power is in section 16 of the PWA, and section 186 of the RMA merely allows a network utility operator to request the exercise of the power. Therefore, the High Court found, the Minister ought to be taking into account the policy and objects of the PWA.

The Court of Appeal overturned the decision of the High Court, finding that under section 186(1) the Minister needs to be satisfied that the project would be capable of achieving a favourable report from the Environment Court under section 24(7) of the PWA. However, the Minister need not personally assess the merits of the potential outcomes.

The Court made some interesting comments about the interaction between the PWA and Part 2 of the RMA in this context. In particular, the Court rejected the finding made by the High Court that the Minister's power arose from section 16 of the PWA. The Court of Appeal clarified that it is the RMA which creates this power, and emphasised that part 2 of the RMA is thus a relevant consideration for the Minister in the decision, as opposed to only those considerations which arise under the PWA.

This requires the Minister to take into account the principles of the Treaty when making the decision to acquire land under section 186. The Court said:[9]

"For example, a proposal that otherwise appeared meritorious might be considered inappropriate because of its implications for land of particular cultural or spiritual value to Māori. Similarly, the facts of the present case included consideration of a potential route (the apparently less costly OTS route) over land which was land-banked for the provision of potential redress in the settlement of claims under the Treaty of Waitangi. We consider a decision made in good faith not to consent to the acquisition of such land under s 186(1) would be appropriate even if the project might otherwise be considered suitable to meet the objectives of a network utility operator."

The Court of Appeal also emphasised the importance for the Environment Court, when making its report under section 24(7) of the PWA, to consider the relevance of the Treaty. While the section does "not expressly require the Environment Court to have recourse to the Treaty of Waitangi or its principles, where the acquisition of land of significance to Māori is at issue the Treaty is clearly relevant to the Environment Court's inquiry."[10] The statutes need to operate "in a complementary manner".[11]

The Court of Appeal, by emphasising the relevance of Part 2 of the RMA to the PWA where the two Acts intersect, reminds decision-makers of the commanding reach of Part 2.

Treaty settlement milestones

In the latter half of 2020 and early 2021 there have been significant steps forward in a number of Treaty settlements. Deeds of settlement were signed or initialled between the Crown and Ngāti Rangitihi, Waikato-Tainui (remaining claims), Ngāti Maniapoto, Te Ākitai Waiohua, and Ngāti Maru (Taranaki).

The Moriori Claims Settlement Bill also passed its first reading.

Other reforms and developments

Proposed RMA reform

Last year's article noted the July 2020 release of the 'Randerson report', which has since been endorsed by the Government as the basis of its upcoming replacement of the RMA. That report also highlights the need for greater Māori participation in RMA processes and recommends, among other things, that:

  • the Mana Whakahono a Rohe process in the RMA be redesigned to provide greater opportunities for local authorities and mana whenua to work in partnership;
  • the transfer of powers and joint management agreement provisions in the RMA be improved by removing barriers to using these mechanisms; and
  • a National Māori Advisory Board be established to monitor Treaty performance of central and local government from a Māori perspective.

Other details of how Māori involvement may be enhanced are not yet known.

The Government has signalled its intention that the legislation to replace the RMA (a 'Natural and Built Environments Act', and a 'Strategic Planning Act') will be formally introduced to the House by the end of 2021, and passed next year.

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

The COVID-19 Recovery (Fast-Track Consenting) Act 2020 came into effect on 9 July 2020. The Act introduces a short-term consenting process designed to support economic recovery and generate employment opportunities in response to COVID-19. 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.

The Act has been a popular avenue for those seeking consents for eligible projects. It offers three pathways for fast-tracked consent, namely projects being listed in the Act, projects being confirmed through Orders in Council, and permitted works relating to existing infrastructure to be undertaken without requiring a resource consent.

At the time of writing, two projects (both listed in the legislation) have been successfully consented, the Ngā Ūranga ki Pito-one Shared Path (discussed above) and the Matawii Water Storage Reservoir.

The Te Tai Tokerau Water Trust lodged an application for the latter project on 10 August 2020, and resource consents were granted by the Expert Consenting Panel on 23 October 2020. The reservoir is intended to provide drinking water for Kaikohe, and to support the development of Northland’s agriculture and horticulture sector (by allowing a combined 7,000ha of land to be converted to high-value horticulture). The reservoir will store 750,000 cubic metres of water, pumped from nearby streams in period of high-water flow.

The Te Tai Tokerau Water Trust hopes that Matawii water storage reservoir will be operational by next summer.

(Note: since the time of writing, two further listed projects have been approved, namely a Papakāinga development in Rāpaki and an arterial road in Queenstown.)

Marine and Coastal Area (Takutai Moana) Act 2011

The Crown has received 387 applications for direct engagement under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA), and two hundred applications under MACA have been made to the High Court. Many of these applications overlap, with 175 of the applications made to the Crown also being made to the High Court.

To date only one decision, Re Tipene [2016] NZHC 3199, has been released under MACA, with the applicant in that successfully being granted customary marine title. The applicant, Mr Dennis Tipene, sought an order for customary marine title on behalf of all Rakiura Māori with customary interests in the islands of Pohowaitai and Tamaitemioka, which form part of the Tītī Islands. The islands are geographically isolated and are only inhabited for the gathering of Tītī (Muttonbird) on a seasonal basis. Only those who whakapapa to the islands can go to them, unless expressly permitted by a committee. The High Court found that an order recognising customary marine title over an area adjacent to the landing zone for the islands should be made for Rakiura Māori with customary interests in the islands.

The High Court is now hearing priority applications. Both the Edwards (CIV-2011-485-817 (Te Whakatōhea)) and Clarkson (CIV-2011-485-789) cases were heard in 2020, but decisions have not yet been released. The Reeder case (CIV-2011-485-793 (Ngā Potiki)) has been set down for April 2021. Since Re Tipene, there have been few substantial developments in MACA jurisprudence, and the release of the Edwards and Clarkson decisions is much-anticipated.

Developments to watch for in 2021

As discussed above, significant legislative change and further developments in RMA case law and practice are expected in the year ahead, including the expected release of a National Policy Statement for Indigenous Biodiversity. Another process to monitor is stage 3 of the Waitangi Tribunal's inquiry into the National Freshwater and Geothermal Resources Claims (Wai 2358), which will focus on geothermal resources.

Notes

[1] [2020] NZHC 3425.

[2] See [40], [42]-[44].

[3] At [68].

[4] At [67].

[5] At [75].

[6] At [75] and [90]-[94].

[7] At [102].

[8] At [103].

[9] At [74].

[10] At [121].

[11] At [120].

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; (2019) April Māori LR; and (2020) October Māori LR.

This article was prepared by Dave Randal, Chelsea Easter, Avikesh Chandra, Manahi Moana, Honor Kelly, and Eilís Donnelly in Buddle Findlay's resource management and Māori law team, based in Wellington. Buddle Findlay acts for clients directly involved in five cases discussed in this article, namely Waka Kotahi NZ Transport Agency v Manawatū-Whanganui Regional Council [2020] NZEnvC 192, Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388, Director-General of Conservation v Taranaki Regional Council [2020] NZHC 3159, Norman v Tūpuna Maunga o Tāmaki Makaurau Authority [2020] NZHC 3425, and the Ngā Ūranga ki Pito-one Shared Path.

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.