August 2018 Māori Law Review

Environment – MV Rena – consent to abandon and discharge contaminants – Ngāi Te Hapu

Ngāi Te Hapu Inc v Bay of Plenty Regional Council 

Environment Court [2017] NZEnvC 073

17 May 2017

Interim decision granting consent for the abandonment of the MV Rena and permitting any future discharge of contaminants from the vessel subject to conditions of consent. Parties directed to consult on the appropriate conditions of consent.

Download Ngāi Te Hapu Inc v Bay of Plenty Regional Council (28 KB PDF).

Overview and Result

Interim decision - MV Rena - consent to abandon and discharge contaminants - granted with conditions
Date17 May 2017
CaseNgāi Te Hapu Inc v Bay of Plenty Regional Council (28 KB PDF)
Citation[2017] NZEnvC 073
CourtEnvironment Court - Te Kōti Taiao o Aotearoa
Judge(s)Judges JA Smith and CE Fox and Commissioners SK Prime and ACE Leijnen
Earlier/later decisionsNgai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 202; Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291; Ngai Te Hapu Incorporated and Nga Potiki a Tamapahore Trust v Bay of Plenty Regional Council [2018] NZHC 936; Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZHC 643; Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZHC 1142; Ngā Potiki a Tamapahore Trust v Bay of Plenty Regional Council [2018] NZEnvC 50; Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZHC 1493.
Legislation citedConfiscated Lands Act 1867; Fisheries (Kaimoana Customary Fishing) Regulations 1998 r 2; Marine and Coastal Area (Takutai Moana) Act 2011; Maritime Transport Act 1994 s 2(1), s 86; Ngāti Awa Claims Settlement Act 2005; Resource Management (Marine Pollution) Regulations 1998; Resource Management Act 1991 ss 2, 4A, 4B, 5, 6, 6(e), 7, 7(a), 8, 9, 15(1), 15(1)(b), 15A, 15A(1), 15A(2), 15B, 87B(1)(a), 104, 104(1), 104(1)(b), 104(1)(c), 104(3), 104(4), 108, 108(10)(a), 120, 274, 274(1)(b) and (d), 274(4), (4A), and (4B), 290A, 330, Pt 2; Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.
Cases cited
Overview and resultInterim decision concerning consent for the abandonment of the MV Rena and to permit any future discharge of contaminants from the vessel.
The MV Rena is a 235m container vessel that ran aground on Astrolabe / Ōtāiti reef on 11 October 2011.  The intention was to transfer the vessel to the Applicant (Astrolabe Community Trust) in order for it to ensure the conditions of consent are adhered to. The decision was subject to an extensive inquiry for four weeks and ultimately the reason the consents were granted was because it was shown that further salvage efforts would cause more damage to the reef and also place considerable risk to the safety of the salvors.
Held, applications granted subject to conditions.
The Court considered that the consent would achieve the purpose of the Act, including recognising and providing for the relationship of Māori with the reef, through the imposition of appropriate conditions of consent.
The Resource Consent conditions provide for:

  • monitoring to detect adverse changes to the Reef
    environment resulting from the exercise of the
    consents; and
  • if the monitoring identifies risks to human health, or significant adverse ecological effects occurred or are likely to occur; or adverse changes to effects on Cultural Values those matters will be dealt with under the conditions of consents and contingency measures; and
  • the ability to ascertain whether the expected long-term natural recovery of the Reef-environment is being impaired; and
  • recognition and provision for the relationship of tangata whenua with Ōtāiti, including through the Kaitiakitanga Reference Group (KRG); and
  • the establishment of an Independent Technical Advisory Group (ITAG) to assist the Council in its supervision of the exercise of these consents.

The parties were directed to consult on the proposed conditions. Following consultation the Court would consider the position and either make further directions or conclude the final consent and conditions. Four subsequent decisions were issued, with the final fifth decision being made on 15 December 2017, which determined the outstanding conditions and issued the final consents with finalised conditions.
Note: (1) the decision contains one of the most comprehensive discussions of sections 6(e), 7(a) and 8 (at [94]-[111]). It was suggested to the Court that it should identify who has mana whenua over the island and the reef.  Given s 2 of the RMA and the contestability between the tribes on the mainland over who has mana whenua, the Court considered it had no choice but to do so. However, it stressed that normally, it is not required to undertake such an analysis (at [82]-[93]).
(2) Ngāi Te Hapū Incorporated was subsequently granted leave to appeal. Following a series of appeal decisions, the appeal was eventually dismissed and the hearing vacated due to the appellants inability to raise security and because there was no realistic prospect of the appeal succeeding.