March 2024 Māori Law Review

Māori interests in natural resource management: 2023 in review

Chelsea Easter, Francesca Dykes, and Dave Randal review legal developments from 2023 relating to Māori interests in natural resources.

Whakataunga - Overview

Mauriora! 2023 was, to put it mildly, an action-packed year in the resource management field. Buddle Findlay is pleased to present this summary of the key developments in 2023 that are particularly relevant to legal practitioners advising Māori.

The year began with the promise of imminent, fundamental reform of the system, the stated purposes of which included giving proper recognition to the principles of Te Tiriti o Waitangi and providing greater recognition of te ao Māori, including mātauranga Māori.

At that time Parliament's Environment Select Committee was considering submissions on the Natural and Built Environment and Spatial Planning Bills, two of the three pieces of legislation proposed by the Labour-led Government to replace the Resource Management Act 1991 (RMA). They were eventually enacted in August 2023 but, following the election of the National-led Government, were gone by Christmas.

The RMA thus lives on with the notable addition, on an interim basis, of fast-track consenting provisions from Schedule 10 to the Natural and Built Environment Act (NBEA), which effectively continue a regime similar to that in the COVID-19 Recovery (Fast-track Consenting) Act 2020 (FTCA) (also now repealed).

Reinstating the RMA was the first step in the new Government's RMA reform agenda. The second will include introducing a new, "permanent one-stop-shop fast-track consenting regime", and the third will involve replacing the RMA with new laws "based on the enjoyment of property rights, while ensuring good environmental outcomes".

Meanwhile, throughout 2023 the Courts continued to hear important cases and issue judgments interpreting and applying the RMA, which will continue to be highly relevant and instructive for years to come.

They include the Supreme Court's decision in Port Otago, which builds on earlier jurisprudence and further clarifies, more than 30 years into the life of the RMA, how the planning hierarchy at its heart operates. Other important judgments addressed issues such as central government obligations to Māori in formulating national-level environmental policy, and Māori rights and interests in water. As well as summarising these cases, below we:

  • update readers on appeals of judgments featured in previous editions of this review;
  • discuss fast-track consenting;
  • summarise a judgment on the interplay between the RMA and the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA) regime, and note briefly other MACA developments;
  • summarise key Treaty settlement milestones reached in 2023; and
  • flag things to watch for in 2024, which promises to be another eventful year.

Kōrerorero - Discussion

National direction – reconciling conflicting policies

Port Otago Ltd v Environmental Defence Society Inc [2023] NZSC 112, [2023] 1 NZLR 205

Our previous reviews have discussed how directive policies in RMA planning instruments have taken on heightened significance since 2014, when the Supreme Court in King Salmon[1] held that 'avoid' policies can effectively act as rules that protect environmental bottom lines. This case had important implications for Māori, including because it presented an opportunity for the relationships described in section 6(e) of the RMA to be properly recognised and provided for through careful wording in plans.

King Salmon involved an appeal from a decision on a plan change. Related cases have since considered the interplay between plans and Part 2 of the RMA in the resource consent sphere, including the Court of Appeal's decision in Davidson.[2]

In the past couple of years the Supreme Court has heard a number of new RMA appeals relating to both planning and consenting decisions, and its decision in Port Otago, a planning case, was released in August 2023.[3]

Port Otago addresses the apparent potential conflict in the New Zealand Coastal Policy Statement (NZCPS) between Policy 9, that decision-makers "recognise that a sustainable national transport system requires an efficient national network of safe ports", and the other NZCPS policies requiring development in the coast to 'avoid' certain adverse effects (policies 11, 13, 15 and 16).

Otago Regional Council's regional policy statement sought to reconcile this potential tension in favour of allowing port development over environmental protection, if certain provisos were met (including that it would not be practicable to avoid certain effects because of the functional needs of that infrastructure). The Environment Court effectively endorsed that approach, but on further appeal it was rejected by both the High Court and the Court of Appeal, which considered that the 'avoid' policies should prevail over Policy 9.

The Supreme Court allowed Port Otago's appeal from the Court of Appeal's decision.

The Supreme Court followed its reasoning in King Salmon in terms of how the NZCPS should be interpreted, emphasising that it will be important to pay close attention to the context within which the policies operate, or are intended to operate, and their purpose (at [60]-[63]).

The Supreme Court went on to introduce the concept of "material harm" to the RMA context, previously discussed by the Court in its Trans-Tasman decision[4] in respect of the marine discharge consents under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012. The Court held that the avoidance policies in the NZCPS must be interpreted (at [68]):

in light of what is sought to be protected including the relevant values and areas and, when considering any development, whether measures can be put in place to avoid material harm to those values and areas.

Policy 9 was arguably as directive as the avoidance policies, as 'requiring' something means it is mandatory (at [69] and [71]). The Court provided general guidance on how a decision-maker at resource consent level might reconcile policy 9 and the 'avoid' policies. The Court stated that the decision-maker would need to be satisfied of the following matters, which even if met may not mean a resource consent is granted, as there is no presumption as to which directive policy prevails (at [75]-[77] and [84]):

  1. the project is required to ensure the safe and efficient operation of the ports in question (and not merely desirable);
  2. assuming the project is required, all options to deal with the safety or efficiency needs of the ports have been considered and evaluated. Where possible, the option chosen should be one that will not breach the relevant avoidance policies. Whether the avoidance policies will be breached must be considered in light of the discussion above on what is meant by "avoidance"; including whether conditions can be imposed that avoid material harm; and
  3. if a breach of the avoidance policies cannot be averted, any conflict between the policies has been kept as narrow as possible so that any breach of any of the avoidance policies is only to the extent required to provide for the safe and efficient operation of the ports.

The Court concluded that a 'structured analysis', considering all relevant factors (including the values inherent in the policies), should be undertaken when deciding in the particular circumstances of the case which of the conflicting directive policies should prevail, and to what extent (at [78] and [84]). The circumstances of the case included that the port was already established (at [70]). The Court observed that greater weight may be given to safety issues compared to efficiency requirements, both of which are capable of more concrete measurement that preservation of important and rare environmental values (at [79]).

The Court was clear that the 'structured analysis' is not the same as the 'overall broad judgment' that was rejected in King Salmon. Rather it is a disciplined evaluation focused on identifying and resolving potential conflicts (at [81]). The Court also observed that conflict should be resolved at the regional policy statement and plan level as far as possible to reduce uncertainty (at [72]-[73]). This increases the importance of ensuring Māori are engaged in the planning processes to ensure that their interests are protected from potential development (the specifics of which would be considered later, at the consenting stage).

As the Environment Court's proposed drafting of the ports policy in the proposed regional policy statement did not reflect all the matters required to be considered under a 'structured analysis', the Court provided some suggested wording (at [82] and [87]).

The Supreme Court decision in respect of the East West Link, a resource consent / designation case, is still awaited. Parties to that appeal made submissions to the Court in Port Otago as both appeals dealt with the meaning of 'avoid' in the NZCPS. The East West Link decision is expected to provide further clarity on directive policies and the meaning of 'avoid' in the resource consent and designation sphere.

Holding central government to account in formulating policy

Muaūpoko Tribal Authority Incorporated v Minister for the Environment [2023] NZCA 641

National policy statements are a powerful RMA tool by which central government can regulate activities (including because 'avoid' policies can effectively prohibit activities that would breach environmental bottom lines, as found in King Salmon) – or not regulate them, as the case may be.

Central government's powers in this regard are not unlimited, however, as the Court of Appeal has recently found.

In our review of 2022, we discussed the High Court's analysis of changes brought about by the National Policy Statement for Freshwater Management 2020 (NPS-FM) in the context of the RMA requirement to "take into account" Treaty principles. That case related specifically to the Minister of the Environment's decision to exempt vegetable production in certain key locations from the national 'environmental bottom lines' for water quality set out in the NPS-FM. Lake Horowhenua and the Hōkio Stream, which are significant taonga and tūpuna of the iwi and hapū represented by Muaūpoko Tribal Authority Incorporated (MTA) and Te Rūnanga o Raukawa Incorporated (Raukawa), were affected by the vegetable production exemption.

MTA and Raukawa were unsuccessful in establishing any ground of review in the High Court. However, on appeal the Court of Appeal ordered that the vegetable exemption clause and its accompanying appendix be quashed. The Court directed the Minister to reconsider whether an exemption for vegetable growing areas should exist and, if so, what form it should take.

In coming to its decision, the Court focused on the grounds regarding the adequacy of consultation and whether further public consultation was required. The RMA sets out two options for the Minister to prepare a new national direction – either to follow the requirements set out in ss 47-51 of the RMA (which involves a hearing by a board of inquiry) or to establish and follow a bespoke process that includes the steps set out in s 46A(4). In this case the Minister had chosen to follow a bespoke process.

The Court stepped through the process that was undertaken (at [84]-[103]), including noting that:

  • the Minister knew that Lake Horowhenua engaged important Māori interests, that the lake was seriously degraded, and that the lake continued to be adversely affected by pollution from vegetable growing and dairy farming (at [92]); and
  • the Minister asked officials to develop alternatives to the vegetable exemption as proposed in light of feedback from MTA and Raukawa, and chose to insert a 10-year time limit to the exemption and modify the proposed vegetable exemption (at [98]-[100]).

The Court of Appeal concluded that, while the Minister had consulted with MTA and Raukawa and acted in good faith, the further consultation that was undertaken in regard to the vegetable exemption was not appropriate or sufficient (at [137]-[138]). The Court summarised the requirements of consultation, including the contextual nature of determining whether consultation is adequate (at [139]-[141]):

[139] If consultation is to be adequate, the opportunity for input must be meaningful. More than mere notification is required. Those being notified/consulted must have a reasonable opportunity to state their views. They must be properly informed about what is proposed so that they can make appropriate decisions and respond fully. The decision maker must ensure there is adequate time for the submission/consultation process. In some cases, a single conversation may suffice; in other contexts, consultation may demand months or years of consultation. The decision-maker must keep an open mind and be ready to change or start afresh. The obligation to consult and/or to notify, receive and consider submissions can trigger an obligation to start afresh and reconsult where a substantial change to the original proposal is contemplated.

Given the contextual factors in the case, including MTA and Raukawa claiming mana whenua and exercising kaitiakitanga over the lake and stream (matters of importance given ss 6(e) and 7(a) of the RMA) and the underlying NPS-FM concept of Te Mana o te Wai, the consultation undertaken by the Minister needed extra diligence. MTA and Raukawa were not given sufficient information, or enough time, to consider the information (at [141]-[142]).

The Court of Appeal also found (at [145]) that:

  • the High Court was correct in finding that:
    • s 5 (the RMA's purpose) and the other provisions in Part 2 of the RMA were not breached by the vegetable exemption; and
    • the Minister was not required to consider the relative strength of MTA and Raukawa's interests in the lake; and
  • there was an arguable conflict between the exemption clause and other parts of the NPS-FM.

Rights and interests in fresh water

Re Ngati Tama Ki Te Waipounamu Trust [2023] NZEnvC 157, (2023) 25 ELRNZ 42

This decision sets out the Environment Court's recommendations to the Minister for the Environment for the making of a water conservation order (WCO) for Te Waikoropupū Springs and Wharepapa Arthur Marble Aquifer, as well as the Court's reasoning. The Minister accepted the Court's recommendations and the WCO came into force on 19 October 2023.

Part 9 of the RMA contains the process for making WCOs, and section 199 of the RMA describes their purpose (expressed to be "notwithstanding anything to the contrary in Part 2").

The Court found that the waters of Te Waikoropupū Springs are 'natural state waters', as Te Puna Waiora, in accordance with tikanga Māori, accepting the unchallenged evidence from mana whenua in this regard (at [49]). Further, all parties agreed that a WCO was needed, given that the natural state and outstanding values were at significant risk from human-induced pollution, but disagreed on how it should be framed.

As to the relevance of the NPS-FM the Court found that, subject to the primacy of the purpose in s 199, the NPS-FM gives context to Part 2 to the degree that Part 2 is relevant in accordance with King Salmon (at [17]). However, the Court did not require the WCO to be interpreted and applied to uphold principles of ki uta ki tai and Te Mana o te Wai as those are matters directed by the NPS-FM (at [80]).

Of interest, the Court discussed how tikanga Māori was relevant to the process:

  • 'Natural state', as in s 199 of the RMA, can encompass a tikanga Māori dimension. The Court is not confined to western science in evaluating whether the subject waters are natural state water, and can also carry out an evaluation through a mātauranga Māori lens (at [49]).
  • In determining whether values or characteristics are outstanding, for the purposes of s 199, the Court generally applied an evaluative benchmark of "out of the ordinary on a national basis". A different benchmark, however, was applied for specified tikanga Māori values – pertaining to the relationship that the wai has with mana whenua, in accordance with tikanga and mātauranga Māori (at [51] and [53]).

In respect of the relationship of mana whenua with water bodies, the Court stated that:

[70] A purpose of the WCO is to preserve the subject waters in their natural state as Te Puna Waiora in accordance with tikanga. For Manawhenua, the health of that state is considered in relationship or whakapapa terms. These are taonga for Manawhenua Iwi who are kaitiaki. As kaitiaki, Manawhenua Iwi have an inherent responsibility to protect and preserve the mauri of these taonga, Te Waikoropupū and the connected waters. The mauri in turn protects the resource to ensure its continued existence and support for the people. Through the lens of s 199, we apply ss 6(e), 7(a) and 8 to our consideration of the evidence about that. Therefore, we recognise and provide for Manawhenua's relationship with the waters, have particular regard to their kaitiakitanga and take into account Treaty principles including those pertaining to the role the WCO can play in active protection.

The Court had particular regard to kaitiakitanga in accordance with s 7(a) of the RMA. One aspect of facilitating and recognising kaitiakitanga was the inclusion of cultural health monitoring which is reflected in cl 6 of the WCO.  Ngāti Tama ki Te Tauihu and other Manawhenua Iwi with an opportunity to partner with Tasman District Council. The Court found that a good faith partnership, as opposed to mere consultation, was central to successfully protecting the spring and accorded with ss 6(e), 7(a), 8 and 199 of the RMA (at [50], [71]-[79] and [148]).

Cases mentioned previously that have been continuing through the courts

Bay of Islands Maritime Park Inc v Northland Regional Council [2023] NZEnvC 86, [2023] NZRMA 448

In our review of 2022 we discussed the Environment Court's decision on the protection of specific areas in the Bay of Islands under the proposed Northland Regional Plan (Topic 14) and the intersection between the RMA and the Fisheries Act 1996. This was the Court's final decision and report to the Minister of Conservation on Topic 14.

Of interest, the Court briefly mentioned the ability under the RMA to transfer council powers (s 33) and make joint management agreements (s 36B). The Court reiterated that co-management / partnership / delegation of powers under s 33 or s 36B of the RMA is encouraged. The Court concluded that provisions regarding co-management and / or partnership between the council and tangata whenua were not necessary in the Regional Plan, but noted that the council should consider those tools in appropriate circumstances in future.

Raikes v Hastings District Council [2023] NZCA 264, (2023) 24 ELRNZ 843

In our review of 2022, we discussed the latest High Court decision relating to an area of land, known as Tītī-a-Okura or Tītīokura Saddle (the MTT88 site), that had been categorised as a wāhi tāonga or "site of significance" under the Proposed Hastings District Plan.

The MTT88 site extended into the Raikes' property. The Raikes' sought leave to appeal the latest High Court decision to the Court of Appeal. The Court of Appeal declined to grant leave. In doing so, the Court found that it was self-evident that ss 6(e), 7(a) and 8 of the RMA require decision-makers to have regard to, and provide for, connections between hapū and their ancestral lands of a cultural, spiritual and historic nature as well as other more tangible connections. The Court went on to state:

[17] The applicants' criticism of the rationality of the decisions of the Environment Court and High Court is misconceived. The question of whether tangata whenua have a cultural, traditional and/or spiritual connection to particular land that is sufficient to justify protection of that land in a district plan is a matter that can be established by evidence. A finding that cultural, traditional and/or spiritual connections exist does not involve any finding about the “correctness” of any spiritual or metaphysical beliefs relevant to those connections. The susceptibility of the “correctness” of such beliefs to determination on the basis of evidence is a red herring: it is the existence and significance of the beliefs that a court can, and must, consider. The courts below did precisely that in the present case. It is not the role of this Court on a second appeal to revisit the assessment of the evidence by the Environment Court and (so far as appropriate) the High Court.

[18] Similarly, the existence of cultural and traditional connections based on historical uses of the land before that land was acquired by the Crown and sold to private owners can be established by evidence. It is not seriously arguable that the RMA permits a council to provide for protection of a site as wāhi taonga in a district plan on the basis of historical uses and their cultural and traditional significance if and only if there are tangible artifacts or other physical traces of those uses on the land.

Fast-track consenting

As noted in the introduction to this review, in 2020 a fast-track consenting process was hastily devised to enable 'shovel-ready' projects to be approved quickly, in order to support industries affected by COVID-19 and stimulate capital investment. The relevant legislation, the COVID-19 Recovery (Fast-track Consenting) Act 2020 (FTCA), contained notable safeguards for Māori, including:

  • a general requirement that decision-makers act in a manner consistent with the principles of the Treaty of Waitangi and Treaty settlements; and
  • that consents could be refused if granting them would be inconsistent with that duty, including for the projects 'listed' in the FTCA (which could only otherwise be declined on narrow grounds).

The process has proven so popular among infrastructure providers and other developers that fast-track consenting now seems destined to be a permanent fixture in Aotearoa.

Below we note the different iterations of the fast-track consenting process and discuss a recent Court of Appeal decision on an appeal supported by Māori.

The legislation

The FTCA came into force on 9 July 2020 and was repealed on 8 July 2023. The FTCA applies to a smaller number of listed projects[5] and over 100 referred projects.[6] While most of the listed projects have been determined, a large number of the referred projects are still in the process of being considered by expert consenting panels.

The NBEA introduced a fast-track consenting regime with some similarities to the FTCA.[7] There are no listed projects and referral applications must be for an eligible activity (ie housing, transport, water, energy etc).  All applications must go through a two-step process. A referral application must be made to the Environmental Protection Authority which provides the application, if complete, to the Minister for the Environment. There is then a set process, including inviting comments from certain persons and the possibility of further information requests, before the Minister decides on the referral (the decision must be made jointly with the Minister of Conservation if the referral application relates to an activity within a coastal marine area). Once referred, the substantive application for resource consents (once lodged) is provided to an expert consenting panel which follows a similar process as under the FTCA.

The Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Act 2023 repealed the NBEA.[8] Despite the repeal, the fast-track consenting process remains in force.[9]

The new Government has signalled its intention to introduce new fast track consenting legislation shortly, intended to be a stand-alone Act with listed and referred projects and an ability to obtain other relevant permits in addition to resource consents.

Greenpeace Aotearoa Inc v Hiringa Energy Ltd [2023] NZCA 672

In our review of 2022, we discussed Te Korowai o Ngāruahine Trust's (the Trust) appeal, supported by four hapū (Ngā Hapū) and Greenpeace, to the High Court against a decision under the FTCA granting resource consent for a green hydrogen plant at Kapuni which included the construction of four wind turbines. Greenpeace appealed the High Court decision to the Court of Appeal and Ngā Hapū were involved in the appeal as an interested party.

One aspect of the appeal concerned the requirement in s 6 of the FTCA that the expert consenting panel must act in a manner that is consistent with the principles of the Treaty. To ensure consistency with the duty of active protection and the exercise of tino rangatiratanga over taonga, Ngā Hapū argued that the panel should have investigated if there was an alternative site for the turbines that would not impact on its spiritual and physical relationship with Taranaki Maunga.

The Court discussed the requirement in s 6, acknowledging that the stronger direction compared to the requirement in s 8 of the RMA was intentional (at [182]). It was necessary to view the actual and potential effect on the environment, any measure to offset or compensate for adverse effects, and any other relevant consideration, through the lens of the Treaty principles and to decline the application if it was not consistent with those principles (at [185]).

After stepping through the articulation of the principles in seminal cases and the 2022 Tino Rangatiratanga Waitangi Tribunal report, the Court accepted that consistency with the principle of active protection (at [186]-[202]):

  • requires the Crown to adopt fair consultative processes with Māori in respect of planned projects that may engage Treaty principles; and
  • may be relevant to whether the project should proceed on the proposed site or at all.

The Court concluded that it was not necessary for the panel to have interrogated the possibility that an alternative site might be found in order for the Project to be consistent with the Treaty (at [203]-[207]), because:

  • the views of iwi and hapū about the effect of the turbines on their spiritual and cultural values were not consistent nor aligned;
  • Ngāti Manuhiakai, the hapū in whose rohe the proposed turbines are to be located and whose view to the Maunga is most affected, was in favour of the Project;
  • the positions of the two most affected hapū and the iwi position indicated to the panel that the project would be consistent with the principles of the Treaty provided appropriate conditions could be negotiated;
  • while the connection of Ngā Hapū to Taranaki Maunga is very strong (reflecting the taonga status of the Maunga), it does not necessarily follow that any new addition to the landscape around the Maunga will always be contrary to the principle of active protection; and
  • the panel found that the project was not fully consistent with Māori cultural and spiritual values, but that is not the same as finding that approving the project was not consistent with the principles of the Treaty.

The Court of Appeal dismissed the appeal. As the appeal was under the FTCA, the Court of Appeal was the final appeal.[10]

Marine and Coastal Area (Takutai Moana) Act 2011

There continue to be further important developments in relation to the Marine and Coastal Area (Takutai Moana) Act 2011 (Takutai Moana Act). A number of hearings took place in late 2023 and are taking place in early 2024, and further hearings have been set down through to 2026.

The most significant decision of 2023 was the Court of Appeal’s decision in Re Edwards Whakatōhea [2023] NZCA 504; [2023] 3 NZLR 252, which is discussed in detail in Whakatōhea Kotahitanga Waka v Te Kāhui and Whakatōhea Māori Trust Board. By way of summary, this is the first decision by the Court of Appeal under the Takutai Moana Act.

The key issue was whether the High Court was correct in determining that a number of applicant groups met the section 58 test for customary marine title. Section 58 requires that the applicant group holds the specified area in accordance with tikanga and has "exclusively used and occupied" that area from 1840 to the present day "without substantial interruption". In a split judgement, the Court of Appeal concluded that Churchman J had incorrectly applied the test, noting that the Court of Appeal "found it exceptionally difficult to reconcile" the test with the purpose of the Act.[11] The Court of Appeal directed the High Court to reconsider the applications. Several parties, including the Crown, have sought leave to appeal the decision to the Supreme Court.

The decision has also been addressed in the coalition agreement between the National Party and New Zealand First, as part of the formation of the current government. The coalition agreement proposes to:

Amend section 58 of the Marine and Coastal Area Act to make clear Parliament’s original intent, in light of the judgment of the Court of Appeal in Whakatohea Kotahitanga Waka (Edwards) & Ors v Te Kahui and Whakatohea Maori Trust Board & Ors [2023] NZCA 504.

The meaning of this policy will likely become clearer during 2024.

The impact of the Takutai Moana Act is also beginning to be seen in the RMA consenting space. Formal recognition of customary marine title or protected customary rights under the Takutai Moana Act gives the holder specified rights under the RMA. These rights do not apply until the orders are granted and given very few orders have been granted, there has been limited opportunity to test fully the implications of these orders on RMA consenting. However, in the meantime, an applicant for a resource consent is required to notify and seek the views of any groups with applications (under the Takutai Moana Act) in the common marine and coastal area to which the resource consent relates.

The Environment Court has recently considered the relationship between the Takutai Moana Act more generally and consenting under the RMA in Ngāti Kuku Hāpu v Bay of Plenty Regional Council [2023] NZEnvC 163.

The decision related to an appeal brought by Ngāti Kuku Hapū against the duration, and ability to review, a coastal occupation permit granted to Tauranga Bridge Marina Limited (TBM) for an existing marina and breakwater in the coastal marina area. The marina's footprint lies within the ancestral waters of Ngāi Te Rangi, of which Ngāti Kuku is a hapū.

Ngāi Te Rangi (on behalf of all hapū, including Ngāti Kuku Hapū) has an application under the Takutai Moana Act for the Tauranga Harbour (Te Awanui), but no orders have been made about the area in question. We understand that applications relating to Tauranga Harbour will be heard as part of the Waihi to Mount Maunganui hearing, which is to be set down for the first available date after 1 February 2026.

Ngāti Kuku argued that the consent should be granted for a short duration on several grounds, including that the 35-year duration would undermine the ability of Ngāti Kuku to exercise their customary rights, including when an order for customary marine title is granted under the Takutai Moana Act. The Environment Court carefully considered the issue raised regarding the Takutai Moana Act but did not accept the argument for Ngāti Kuku, noting that (at [122]):

the prospect of obtaining such an order is not a relevant consideration as it does not involve any particular resource management issue which is reasonably necessary to determine this appeal, within the scope of s 104(1)(c) of the RMA. Broadly, ownership of a resource is normally not a relevant consideration under the RMA. A resource consent is neither real nor personal property. If property in the area of occupation should change, then the consequences of that will need to be determined when the time comes.

The Environment Court approved the 35-year duration. However, the Court also amended the review condition to enable a review of the conditions of consent “When an order is made under the MACAA affecting the seabed of Te Awanui at or in the vicinity of the area occupied by the marina” (at [125] and [129]).

Treaty settlement milestones

Since our last update Whakatōhea, Te Korowai o Wainuiārua and Ngā Iwi o Taranaki (in relation to Taranaki Maunga) signed Deed of Settlements and Te Whānau ā Apanui initialled its Deed of Settlement.  Ngāi Tai (Tōrere) signed Terms of Negotiation with the Crown.

Legislation has been introduced for:

  • Te Korowai o Wainuiārua
  • Te Pire Whakatupua mō Te Kāhui Tupua/Taranaki Maunga
  • Whakatōhea

Developments to watch for in 2024

There are a number of significant developments to watch out for in 2024, including:

  • The Supreme Court's decisions in Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council and in respect of the East West Link Project;
  • The new fast-track consenting legislation; and
  • Resource management reforms by the new government.

Ngā kupu āpiti – Notes

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; (2022) February Māori LR; and (2023) March Māori LR.

This article was prepared Chelsea Easter, Francesca Dykes and Dave Randal in Buddle Findlay's resource management and Māori law team, based in Wellington.

[1] Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2014] NZSC 38, [2014] 1 NZLR 593.

[2] RJ Davidson Family Trust v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR 283.

[3] The case is the culmination of appeals from the decisions in Environmental Defence Society v Otago Regional Council [2019] NZHC 2278, (2019) 21 ELRNZ 252; and Port Otago Ltd v Environmental Defence Society Inc [2021] NZCA 638, (2021) 23 ELRNZ 409.

[4] Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [252], [261], [292]-[293], [309]-[311] and [318]-[319].

[5] Schedule 2.

[6] COVID-19 Recovery (Fast-track Consenting) Referred Projects Order 2020.

[7] Natural and Built Environment Act 2023, sch 10, pt 2.

[8] Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Act 2023, s 5(1).

[9] Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Act 2023, sch 1, cls 8-10.

[10] COVID-19 Recovery (Fast-track Consenting) Act 2020, sch 6, cl 44(3).

[11] Re Edwards Whakatōhea [2023] NZCA 504; [2023] 3 NZLR 252 at [416].

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.