March 2023 Māori Law Review

Māori interests in natural resource management: 2022 in review

Chelsea Easter, Francesca Dykes, Sam Kenneally, and Dave Randal review legal developments from 2022 relating to Māori interests in natural resources.

Whakataunga - Overview

Ngā mihi nui ki a koutou katoa – the team at Buddle Findlay feels privileged to have the opportunity to present this overview of recent legal developments in the resource management field that are of particular relevance to Māori.

2022 was another busy year in the area, with progress made towards fundamental reform of the resource management system – which promises significant opportunities, and some risks, for Māori – as well as a number of notable judicial decisions made under environmental legislation.  This article discusses these matters and briefly summarises Treaty settlement milestones in 2022.

Kōrerorero - Discussion

Natural and Built Environment Bill and Spatial Planning Bill

As practitioners will be aware, in late 2022 the Government introduced the Natural and Built Environment Bill (NBEB) and Spatial Planning Bill, two of the three pieces of proposed legislation to replace the Resource Management Act 1991 (RMA).  The Environment Select Committee is currently considering submissions on these Bills and its report is expected on 22 May 2023.

One of the five objectives of the reform is to give proper recognition to the principles of Te Tiriti o Waitangi and provide greater recognition of te ao Māori, including mātauranga Māori.

Once the final content of this legislation is settled, we hope to step through the changes to the resource management regime for readers and provide commentary on the key implications for practitioners working with Māori.

In the meantime, the Bills set out the basis for a new regime that will be underpinned by mātauranga Māori and rely heavily on spatial and other planning undertaken by and with iwi and hapū.  Of note are the following provisions:

  • One of the purposes of the NBEB is to "recognise and uphold te Oranga o te Taiao"[1] which is defined as meaning:

(a) the health of the natural environment; and

(b) the essential relationship between the health of the natural environment and its capacity to sustain life; and

(c) the interconnectedness of all parts of the environment; and

(d) the intrinsic relationship between iwi and hapū and te Taiao.

  • As has been foreshadowed throughout the reform process, the NBEB contains a requirement (in clause 4) to "give effect to" the principles of Te Tiriti o Waitangi, in contrast to the current directive to "take into account" those principles under the RMA. The requirement to "give effect to" Treaty principles echoes the Conservation Act 1987 requirement and has been described as the strongest form of Treaty clause.[2]  
  • The proposed 'system outcomes' to be achieved through the new regime include several of relevance to Māori, including explicit reference to the protection or, if degraded, restoration of mana and mauri of air, water, soils, coastal waters, waterbodies and biodiversity.[3] In particular, the existing RMA section 6(e) matter of national importance has been retained and expanded as a system outcome, to include recognition of, and making provision for, the relationship of iwi and hapū and the exercise of their kawa, tikanga (including kaitiakitanga), and mātauranga in relation to their ancestral lands, water, sites, wāhi tapu, wāhi tūpuna, and other taonga.
  • Both Bills require persons to recognise and provide for the responsibility and mana of iwi and hapū to protect and sustain the health and well-being of te taiao in accordance with the kawa, tikanga (kaitiakitanga) and mātauranga in their area of interest.[4]
  • Māori will be directly involved in the planning process. The Crown must engage with iwi authorities, groups that represent hapū, and/or other Māori groups with interests when preparing the overarching national planning framework, the first iteration of which the Government intends to issue later in 2023.  Decisions on regional spatial strategies and natural and built environment plans will be made by regional planning committees; those committees will have at least six members, at least two of whom will be appointed by iwi authorities and groups representing hapū.
  • A National Māori Entity will be established to provide independent monitoring of decisions under the Natural and Built Environment Act or the Spatial Planning Act, including whether the principles of te Tiriti have been given effect.[5]
  • The recent change to the compulsory acquisition powers of requiring authorities under the RMA to prevent 'protected Māori land' from being acquired by network utility operators that are also responsible special purpose vehicles (SPVs) has been retained in the Bill.[6]

Once the Bills are enacted there will be a lengthy period of transition to the new regime.  This period will present important new opportunities for Māori values and historical associations to shape life in each region of Aotearoa.  Much work will be needed, however, to translate these opportunities into meaningful improvements for Māori and for the environment.

Holding central government to account in formulating national policy

Muaūpoko Tribal Authority Inc v Minister for Environment [2022] NZHC 883

This decision from 2022 provides an interesting backdrop to the current preparation by the government – in a way that must "give effect to" Treaty principles – of the first national planning framework under the new regime.

The case highlights judicial review as one legal avenue for Māori to challenge national policy, and in its decision the High Court analyses changes brought about by the National Policy Statement for Freshwater Management 2020 (NPS-FM) in the context of the current RMA requirement to "take into account" Treaty principles.

The Court considered an application for judicial review of the Minister of the Environment's decision to include clause 3.33 in the NPS-FM.  Clause 3.33 provides a 10-year exemption for vegetable production from some of the national 'environmental bottom lines' for water quality set out in the NPS-FM, and was inserted due to concerns expressed by growers about the impact of the NPS-FM on domestic vegetable supplies.

The applicants, Muaūpoko Tribal Authority Incorporated (MTA) and Te Rūnanga o Raukawa Incorporated (Raukawa), represent iwi and hapū who are kaitiaki of Lake Horowhenua and Hōkio Stream, which are significant taonga and tūpuna. The exemption for vegetable production was at issue because Lake Horowhenua and Hōkio Stream are situated in one of two major vegetable growing areas in New Zealand.  MTA and Raukawa challenged the exemption on several grounds, including non-compliance with Part 2 of the RMA and the principles of Te Tiriti o Waitangi.

The High Court declined the application for judicial review on all grounds.  In reaching this decision, the Court discussed the development process for the NPS-FM, including the Government's freshwater goals, the issue of vegetable production and the development of the vegetable exemption.  After identifying that it may not be achievable to meet the strengthened national bottom line for nitrate toxicity and ammonia in Pukekohe and Horowhenua, a regulatory impact analysis had been carried out, and an in-principle decision made, subject to further consultation with local iwi and hapū.  After further consultation, the Minister had requested that alternative solutions be developed and eventually the time-limited exemption had been selected.  The 15 July 2020 briefing paper that recommended the time-limited exemption had noted that although it had not been tested with relevant iwi and hapū, it was most aligned with feedback generally (at [107]). A report supporting the new policy had then noted that the time limit would send a strong message to iwi about the government's intention to improve water quality and to vegetable growers that they must work to find solutions to improve water quality (at [110]).

In relation to the exemption's compliance with Part 2 of the RMA, the High Court considered whether s 5 of the RMA contains environmental bottom lines, especially in light of the recent decision in Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 (TTR), discussed in our 2021 year in review article, and reaffirmed that it does not.  The vegetable exemption was not contrary to s 5.  The Court further considered ss 6(e) and 7(a) of the RMA, finding that the NPS-FM is consistent with the obligations in those sections.  The vegetable exemption does not detract from ss 6(e) and 7(a), because regional councils are nonetheless required to meet the requirements of the NPS-FM in a way that gives effect to Te Mana o te Wai.

In determining whether the Minister failed to consider mandatory considerations, the High Court was asked by the applicants to consider the different relationships of MTA and Raukawa with Lake Horowhenua and the Hōkio Stream.  The High Court declined to do so, concluding that their respective relationships were not particularly relevant to the Minister's decision (and noting that MTA and Raukawa were aligned in their opposition to the exemption).

The Court then considered the adequacy of the consultation undertaken.  Although it would have been preferable for consultation to have occurred before the in-principle decision, the Court said, sufficient consultation did occur and it was genuine and approached with an open mind.  The Court also rejected arguments relating to alleged unlawfulness and unreasonableness of the exemption.

Finally, the Court considered the principles of Te Tiriti, both under s 8 and whether any directly enforceable rights emerge from Te Tiriti itself.  The High Court held that the "constitutional significance of the Treaty means direct enforcement by way of judicial review may be justified.  This is consistent with the Court of Appeal’s decision in Takamore v Clarke [2011] NZCA 587 in which it was observed that the courts indirectly "enforce" the Treaty in a number of ways including by giving it "direct impact" in judicial review as an implied mandatory consideration…".  The Court decided it was not necessary to determine this in this case on the basis it was not argued that the Treaty itself would give any greater rights than under s 8 of the RMA.

Edwards J noted the potential for a breach of the duty of active protection in light of the historical context.  However, because the exemption nonetheless requires the regional council to set targets to improve the situation, that duty was met in the case of the NPS-FM.  The Court acknowledged that "If the vegetable exemption operated so as to maintain the status quo, or enable further degradation, then I would have found this claim to have been proved.  Permitting the further degradation and pollution of the Lake, or failing to take active steps to restore it, would not be consistent with the Crown’s active duty to protect a vulnerable taonga" (at [254]).

Other cases to bring to your attention

Perjuli Developments Ltd v Waikato District Council [2022] NZEnvC 51

In this decision, the Environment Court considered an appeal from Perjuli Developments Limited (Perjuli) relating to the review and cancellation of a resource consent for earthworks.  The consent was cancelled on several grounds, including that it:

  1. failed to note consultation with, and opposition of, Ngāti Tamainupō; and
  2. misrepresented a letter from the Tūrangawaewae Board of Trustees indicating the cultural significance of the site and the conditions sought to protect certain areas of the site.

The Environment Court acknowledged that, as set out in the Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd decision (discussed in our 2019/2020 review article), there are occasions where the Court must decide issues of mana whenua.  In these circumstances it was not necessary to consider the respective mana whenua status of Ngāti Tamainupō and Ngāti Mahuta, two hapū of Waikato Tainui.  The Court stated (at [35]):

Again we understand that Kīngitanga and Tainui Waikato are inclusive of hapū as mana whenua, and thus do not substitute for the mana of hapū but combine and reference it through the holistic concepts of relationship and whanaungatanga.  Such a world view would not reduce the status of individuals, whanau, hapū or iwi but rather interconnect and reinforce them.  We conclude that both the board and Ngāti Tamainupō can claim direct (and largely overlapping) relationship with the site.

The Environment Court concluded that the Council was justified in reviewing the consent on the basis that information made available to the consent authority contained inaccuracies which materially influenced the decision (at [54]).  In terms of cancellation, the Court noted that the response should be proportionate and that "cancellation is a last resort.  Although the breach of trust with the hapū and Council by Perjuli is serious, that does not fully answer the issues under s 132.  Such a breach makes cancellation a real option, but the primary purpose of the Act relates to sustainable management" (at [81]).  However, the Court concluded that in light of the deliberate actions of Perjuli and the need to rebuild trust and respond to cultural concerns, cancellation was correct (at [113]).

Re Ngā Kaitiaki o Te Awa o Ngaruroro [2022] NZEnvC 227

This decision relates to an application for a water conservation order (WCO) over the Ngaruroro River by various parties.  Ultimately, the relevant order sought was by Royal Forest & Bird Protection Society of New Zealand Inc and Whitewater NZ, over the upper and lower parts of the Ngaruroro River.  There was opposition to this order for various reasons, including by tangata whenua.

The Environment Court carefully considered whether the WCO should be granted, noting that there is a presumption in favour of conservation.[7] The Court concluded that no factor relevant to its decision-making (including under s 212(a) and (b) of the RMA or in relation to flood protection or climate change) displaced the presumption.

However, the Court went on to consider whether the WCO failed to meet ss 6(e), 7(a), and 8, including the requirement to "take into account" the principles of the Treaty, noting that the WCO did not include any reference to Māori values.

The Court concluded that the applicant had failed to consult adequately with several of the hapū and marae of the upper Ngaruroro River, noting that "It is not enough that those efforts were genuine because they did not result in even a minimal level of engagement with all affected iwi and hapū having a relevant interest according to tikanga" (at [433]).  The Court went on to state:

[438] … It is not an issue of tangata whenua having a right of veto over such applications, which the law confirms, in such situations, they do not.  It is simply a case of tribes who are directly affected by the application not being consulted…

[439] Consultation assists in giving the Court confidence that the Court's responsibilities under ss 6(e), 7 and 8 of the RMA have been discharged.  More specifically, that the Court has adequately considered tangata whenua’s relationship with their whenua, (much of which they still own and with the Ngaruroro River running near or through those lands) or had adequate regard to their kaitiakitanga responsibilities as they have exercised them for generations.  In addition, it assists in informing the Court whether the relevant Treaty principles, including those of consultation, active protection and acting in good faith, have been properly applied.

On balance, the Court concluded that having identified 'outstanding values' in the upper river, which would not be protected without the WCO, that the WCO should be granted with a new clause to provide for the recognition of Māori rights and interests, and the potential for a future transfer of authority concerning the management of water to an iwi authority.

Te Korowai o Ngāruahine Trust v Hiringa Energy Ltd [2022] NZHC 2810

This decision related to an appeal to the High Court by Te Korowai o Ngāruahine Trust (the Trust) against a "fast-track" decision made by an Expert Consenting Panel (Panel) approving resource consents for the construction of four large wind turbines (the Project).  The Project is proposed to be undertaken by Hiringa Energy Ltd and Balance Agri-Nutrients Ltd, and consents were sought under the COVID-19 Recovery (Fast-track Consenting) Act 2020 (FTCA).

The Trust argued, among other things, that the Panel had not adequately considered the cultural landscape of Ngāruahine as a whole, and that it had not taken sufficient steps to address the adverse cultural effects of the Project, as required under Treaty principles.  The relevant Treaty provision in the FTCA, s 6, differs from s 8 of the RMA (see [190]):

  • The decision-maker must, in achieving the purpose of the Act, "act in a manner that is consistent with", rather than "taking into account", the principles of the Treaty.
  • In addition, the decision-maker must act in a matter that is consistent with Treaty settlements.

Importantly, clause 31(12) of Schedule 6 to the FTCA provides that a panel must decline a consent application for a referred project if that is necessary to comply with the Treaty provision.

The High Court found that the Panel had not erred in recognising Hiringa's efforts to mitigate the effects of the Project on the cultural landscape of Ngāruahine.  The Court provided guidance on the interpretation of s 6 of the FTCA:

[238] The Panel was required to assess the consistency of the proposal with relevant Treaty principles within the statutory framework.  The applications did not satisfy all that iwi and hapū had sought in terms of tino rangatiratanga, but the Panel was required in achieving the purpose of the Act, to exercise its powers, in a manner “consistent with” the principles of the Treaty and Treaty settlements.  The Treaty clause and related cultural provisions do not require the consent of iwi and hapū to the Project to achieve such consistency. (…)

[240] In the context of achieving the particular purposes of the FTCA, it was open to the Panel to be satisfied that in granting the consents it was acting in a manner consistent with the Treaty principles.  Within the overarching legislative framework, and the particular limitations of the fast-track consenting scheme, it made no error in reaching that conclusion. (…)

[272] The decision-maker must show it has engaged with the cultural issues raised and satisfied itself that the adverse cultural effects which would prevent “consistency” with the principles of the Treaty have been addressed.

Additionally, the Panel's determination that the Project satisfied the requirements of the FTCA, and its decision to grant consents with conditions imposed in accordance with preferences expressed by hapū with mana whenua, were upheld by the High Court.

The High Court also found that the FTCA does not require a hearing to be held, as the Panel giving adequate reasons for its substantive decision meant there was no requirement to provide reasons for not holding a hearing.  This is in line with the emphasis of the FTCA on time-limited decision-making, as a requirement to give reasons for a procedural decision to hold a hearing would run counter to its "fast-track" nature.

Ultimately the High Court dismissed the appeal, finding that the Panel acted in a manner consistent with the principles of the Treaty and Treaty settlements, as required by s 6 of the FTCA, and that the Panel appropriately addressed all concerns and material provided by the Trust.

Bay of Islands Maritime Park Inc v Northland Regional Council [2022] NZEnvC 228

This case relates to the protection of three areas in the Bay of Islands under the proposed Northland Regional Plan.  This decision further addresses the intersection between the RMA and the Fisheries Act 1996 (Fisheries Act), which was previously discussed in our 2019/2020 review in relation to Attorney-General v Trustees of the Motiti Rohe Moana Trust [2019] NZCA 532.  Here the Environment Court noted that the "Fisheries Act is focused from a resource perspective but does include broader powers to maintain biological diversity (s9(b)) and protect benthic and other elements of the broader environment", whilst "the RMA is focused on biodiversity and interrelated values" and has a broader focus on the environment as well (at [66]-[67]).  The Court confirmed that both Acts need to be considered in the context of tikanga and the relationship of tangata whenua to the relevant area (at [71]).

The Court concluded that the Fisheries Act provided adequate protection of biodiversity values in two of the areas applied for, but that one area was required to be protection under the RMA, due to the high diversity values of the area (although this did not prevent additional protection under the Fisheries Act).  The Court concluded by acknowledging that "the Court has taken an incremental approach to protection in this case, recognising as it does the significant tikanga issues which arise as well as the interrelationship between the Fisheries Act and the RMA" but that if increased protection is not achieved "both the Minister and the Council may need to consider further controls to seek to protect these areas" (at [218]-[219]).

Protect Aotea v Environmental Protection Authority [2022] NZHC 1689

This decision relates to a judicial review of a decision of the Environmental Protection Authority (EPA) to grant a marine dumping consent for dredged material at the Cuvier Disposal Site, near Repanga (Cuvier Island) under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act).  One of the grounds of review challenged the decision on the basis that it failed to take into account the likely effect the proposed dumping activity would have on tikanga-based customary rights and interests held by various iwi and hapū in relation to the area in which dumping will occur.

The Court considered whether the EPA had erred in relation to its assessment of existing interests.  In doing so, the Court considered the principles identified or confirmed in the Supreme Court's Trans-Tasman Resources decision.

The EPA had erred by noting that pending claims under the MACA Act could not be considered as existing interests.  However, that error was of no consequence in the particular circumstances.  The Court concluded that the EPA did not err in its assessment of existing interests under s 59 of the EEZ Act because:

  • there was no statutory obligation for the EPA to consult or hear submissions from parties served with specified documents;
  • in the absence of any response to its letters the EPA would have been left to speculate as to which entities may be claiming an interest or right in the area;
  • proactively seeking information from all 60 groups and entities on whom it had served the application would have involved considerable effort and delay and would have been unreasonable in the circumstances; and
  • although a Cultural Impact Assessment was recommended by Ngā Kaihautū Tikanga Taiao (the EPA's Māori Advisory Committee), it would have been unreasonable in the circumstances as there were no identified existing interests to assess.

Ultimately, the Court concluded that the EPA had not erred by making its decision on the basis of the best available information at the time. The High Court declined the application for judicial review.

Updates on judgments discussed in previous articles

Raikes v Hastings District Council [2022] NZHC 3075

In previous articles we discussed the Environment Court's interim decision and subsequent appeal to the High Court in Maungaharuru-Tangitū Trust v Hastings District Council [2018] EnVC 79 (the Interim Decision) and [2019] NZHC 2576 (the High Court Decision) (in our 2018 and 2019 articles respectively).  Following on from these cases, a further Environment Court Decision, Maungaharuru-Tangitū Trust v Hastings District Council [2021] NZEnvC 98 (the Revised Decision), recognised an area of land, known as Tītī-a-Okura or Tītīokura Saddle (the MTT88 site), as a wāhi tāonga or "site of significance" under the Proposed Hastings District Plan (the Proposed Plan).

In this decision the High Court considered an appeal from the Revised Decision in respect of the categorisation of the MTT88 site as wāhi tāonga in the Proposed Plan, as this extends into the Raikes' property.  The Raikes' contended that the Environment Court had made errors in its assessment, relying on the cultural evidence at the hearing and failing to take into account the Raikes' own Christian beliefs.  Further to this, the Raikes argued that the evidence did not support recognition of the site to the extent of the area approved on its land, and that cultural activities pointed to, such as tītī hunting and a historical trail, mainly occurred within defined areas along the present State highway.

The High Court dismissed the appeal.  Of particular note, the High Court considered case law regarding the assessment of cultural evidence and approved the 'rule of reason' approach previously adopted by the High Court.  The Environment Court had correctly applied the relevant law in its consideration of the evidence.  The High Court noted the following:

[115] In one sense the cultural could be described as biased in the legal sense, in that the witnesses were giving evidence in support of MTT’s case to recognise the site.  However, the cultural evidence was given by witnesses who were themselves qualified experts.  It was consistent and drew on whakapapa, stories handed down in the oral tradition and records of earlier evidence of kaumātua as well as other research.  In assessing the evidence, the Court will look at all the evidence, including, as in this case, the landscape expert evidence, which here supported the cultural evidence. (…)

[117] The cultural evidence before the Court was through whakapapa (genealogy), kōrero tuku iho (the Hapū history), pepeha (tribal sayings), waiata (songs), whakatauākī (proverbs) and whakairo (carvings).  The position was also supported by historical records, archaeological evidence, and statements of associations set out in the Maungaharuru Tangatu [sic] Hapū deed of settlement which indicate the association of the Hapū to identified areas.  This was evidence which the Court was entitled to and did accept.

After reiterating the importance of testing the credibility and reliability of mana whenua evidence, the High Court noted that such evidence, if consistent and credible, will be strong evidence.

Te Whānau a Kai Trust v Gisborne District Council [2022] NZHC 1462

In our 2021 review, we discussed the Environment Court's decision in Te Whānau a Kai Trust v Gisborne District Council [2021] NZEnvC 115.  At that time, we noted that the decision had been appealed to the High Court. The High Court judgment has since been issued.

The High Court held that the Environment Court had not erred in finding it had no jurisdiction under the RMA to recognise and provide for tikanga-based proprietary rights or interests in freshwater, reinforcing the position that the RMA is not designed to recognise issues of this type relating to freshwater.  The other grounds of appeal involved evidence supporting unextinguished tikanga rights, whether the RMA can require Council funding through a provision of its Freshwater Plan, and issues relating to specific amendments to the Freshwater Plan.

The High Court rejected all grounds of appeal, resulting in the appeal being dismissed.  Te Whānau a Kai sought leave to appeal to the Court of Appeal in late 2022 and the application was declined on all grounds.

Of note, the issue of jurisdiction relating to freshwater has been further discussed recently in Attorney-General v Carter [2023] NZHC 204. This was a declaratory proceeding where the High Court considered whether the Māori Land Court's jurisdiction under s 18 of the Te Ture Whenua Māori Act 1993 to determine ownership and rights to Māori freehold land includes the jurisdiction to make separate determinations about customary title over freshwater on that land.  The Court concluded that the Māori Land Court does not have jurisdiction to determine customary title in respect of freshwater, or to order damages for injury to such customary title to water.

Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2022] NZCA 598

In previous articles we have discussed the Environment Court's interim decision in Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196 and the High Court's decision in Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388 (in our 2019/2020 and 2020 articles respectively).  In the Environment Court, the majority dismissed appeals against consents allowing the expansion of an existing water bottling operation near Ōtakiri.  The High Court upheld that decision, and (among other findings) 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 have added anything to its evaluation, given the coverage provided by the relevant regional planning instruments in the Bay of Plenty.

The Court of Appeal also dismissed further appeals, finding the High Court had not erred except in one instance (unrelated to Māori interests) which had not materially affected the ultimate outcome.  In respect on the ground relating to Part 2 of the RMA, the Court of Appeal made the following finding:

[109] We have already set out many of the relevant extracts from the planning documents to which the High Court referred, at [90]-[92] above, and we do not repeat them here.  We observe that they reflect an apparently comprehensive set of provisions dealing with issues relevant to the relationship of Māori with water, te mana o te wai and relevant Te Tiriti o Waitangi/Treaty of Waitangi principles.  The latter include provisions recognising tino rangatiratanga and the degradation of mauri.  The planning documents refer extensively to both the biophysical and metaphysical dimensions of activities relating to water.  The appellants assert an error as a result of the Courts not referring in addition to pt 2, but we are left unclear as to what that might have added to the analysis carried out by reference to the planning documents.  This was a case in which, in accordance with what was said in RJ Davidson, the Environment Court could properly conclude that nothing would be added by direct reference to pt 2.  And in this respect, it is not a significant point to say that the planning framework might later change if what remained and was referred to dealt comprehensively with the issues affecting the wai from both a biophysical and a metaphysical perspective.

The appellants have sought leave to appeal to the Supreme Court.

Poutama Kaitiaki Charitable Trust v Heritage New Zealand Pouhere Taonga [2022] NZHC 2713

In our previous articles we have discussed the series of cases under the RMA which considered whether the Poutama Kaitiaki Charitable Trust (Poutama) has status as mana whenua under that Act.  In our 2021 review, we discussed Poutama Kaitiaki Charitable Trust v Heritage New Zealand Pouhere Taonga [2021] NZEnvC 165, which considered whether Poutama come within the meaning of tangata whenua under the Heritage New Zealand Pouhere Taonga Act 2014.  On appeal, the High Court rejected the appeal on the basis that "Poutama is clearly attempting to relitigate a matter that has already been determined twice by this Court, and the Environment Court" (at [43]).

Marine and Coastal Area (Takutai Moana) Act 2011

2022 was a significant year for the development of case law under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA), with the High Court holding several further hearings and releasing two judgments in the second stage of cases: Re Edwards (Whakatōhea Stage Two) [2022] NZHC 2644 and Re Ngāti Pāhauwera Stage 2 [2023] NZHC 15.

Judgments to date on the first stage of cases have focussed on whether the tests for Protected Customary Rights (PCRs) and Customary Marine Title (CMTs) in ss 51 and 58 are met.  The judgments on the second stage of cases focus on the form of the recognition order for PCRs and CMTs (s 109).

Re Edwards (Whakatōhea Stage Two) [2022] NZHC 2644 was the first judgment addressing s 109 of MACA.  There were various issues with documentation including the lack of survey plans or maps identifying the location of the relevant PCRs and CMTs.  Therefore, the decision was issued as an interim decision with an opportunity for the applicants to supplement their evidence.  Nonetheless, the High Court made several findings about the nature of PCRs and CMTs and related wāhi tapu protection rights.

In particular, the Court highlighted the "critical importance" of wāhi tapu sites being clearly identified on maps so they could be incorporated into CMT (at [321]), and reiterated that wāhi tapu protections and restrictions can only be granted to protect a sacred area, not regulate unrelated behaviour or things that do not occur in the takutai moana such as camping.

Re Ngāti Pāhauwera Stage 2 [2023] NZHC 15 was similarly issued as an interim decision, and largely addressed issues relating to the draft orders and maps that are required to be resolved before the recognition orders can be finalised.

During 2022, the Court also held a specific wāhi tapu hearing relating to Re Reeder (Ngā Potiki), and a stage one hearing for an application at Tokomaru Bay.  Decisions from both these hearings are expected later this year.

Looking ahead, appeals from Re Edwards (Te Whakatōhea (No.2)) [2021] NZHC 1025 by Whakatōhea Kotahitanga Waka, Te Rūnanga o Ngāti Awa, the Landowners Coalition, and cross-appeals from Ngāti Ruatakenga, Te Ūpokorehe Settlement Trust, and Ngāti Patumoana were heard in February 2023.

Treaty settlement milestones

Since our last update Ngāti Tara Tokanui signed its Deed of Settlement and Te Korowai o Wainuiārua initialled its Deed of Settlement.  Ngāti Ruapani, Ngāti Hāua, and Ngāti Mutunga o Wharekauri signed Agreements in Principle with the Crown.

Legislation to give legal effect to five settlements was enacted in 2022:

  • Ngāti Rangitihi Claims Settlement Act 2022
  • Ngāti Maru (Taranaki) Claims Settlement Act 2022
  • Maniapoto Claims Settlement Act 2022
  • Te Rohe o Rongokako Joint Redress Act 2022
  • Ngāti Kahungunu ki Wairarapa Tāmaki nui-a-Rua Claims Settlement Act 2022

Legislation has also been introduced for:

  • Ngāti Tara Tokanui
  • Ngāti Hei
  • Ngāti Paoa
  • Hauraki Collective

Developments to watch for in 2023

There are a number of significant developments to watch out for during the remainder of this year, notably the progress and enactment of the Natural and Built Environments and Strategic Planning Bills, and the introduction of the third piece of legislation to replace the RMA, the Climate Adaptation Bill. The Supreme Court is also expected to provide its Port Otago and East West Link decisions which will provide guidance on avoidance policies and Part 2 of the RMA.  We discussed the Environment Court, High Court and Court of Appeal decision in Port Otago in previous articles.

Ngā kupu āpiti - Notes

[1] See clause 3(b).

[2] See Ngaronoa v Attorney-General [2017] NZCA 351, [2017] 3 NZLR 643 at [43]. The strength of 'give effect to', for example as in s 4 of the Conservation Act, has been discussed by the Supreme Court in Ngāi Tai Ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR 368. It is also used in a slightly different form in section 3A of the Climate Change Response Act 2002 and section 12 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.

[3] Clause 5(a)(i).  See also cl 5(e) which is similar to s 6(e) of the RMA, cl 5(f) which is similar to s 6(g) of the RMA.

[4] NBEB, cl 6(3). SPA, cl 7.

[5] See generally cls 649-674.

[6] See clauses 497 and 525 of the NBEB and section 186 of the RMA.  Section 186(7A) of the RMA was inserted by the Infrastructure Funding and Financing Act 2020.  See section 7 of the Infrastructure Funding and Financing Act 2020 for the definition of SPVs. Section 11 of the Infrastructure Funding and Financing Act 2020 also includes a definition of 'protected Māori Law', which is similar to that in section 497 of the NBEB.

[7] At [416], citing Ashburton Acclimatisation Society v Federated Farmers of New Zealand Inc [1998] 1 NZLR 78 (CA) at 88.

Follow the links below for the previous reviews of Māori interests in natural resource management (2013) March Māori LR; (2014) March Māori LR; (2015) March Māori LR; (2016) April Māori LR; (2017) April Māori LR; (2018) March Māori LR; (2019) April Māori LR; (2020) October Māori LR; (2021) March Māori LR; and (2022) February Māori LR.

This article was prepared by Chelsea Easter, Francesca Dykes, Sam Kenneally, and Dave Randal 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 Rūnanga o Ngāti Awa v Bay of Plenty Regional Council and Te Whānau a Kai Trust v Gisborne District Council.

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.