December 2018 Māori Law Review
Nga whakahaere rauemi – proposed plan – rules for waahi taonga – Maungaharuru-Tangitū Trust
Maungaharuru-Tangitū Trust v Hastings District Council
Environment Court [2018] NZEnvC 079
28 May 2018
Unsuccessful appeal by the Maungaharuru-Tangitū Trust against decisions made by the Hastings District Council on issues relating to eight waahi taonga to be included in the Council's Proposed District Plan (PDP). The Court directed the parties attend a mediation to identify boundary points defining areas having higher degrees of protection, and if no agreement was reached then the Court would decide.
Download Maungaharuru-Tangitū Trust v Hastings District Council (88 KB PDF).
Whakataunga - Overview and result
| Nga whakahaere rauemi - natural resource management - proposed district plan - rules for eight waahi taonga - appeal from council decision to Environment Court | |
| Date | 28 May 2018 |
| Case | Maungaharuru-Tangitū Trust v Hastings District Council (88 KB PDF) |
| Citation | [2018] NZEnvC 079 |
| Court | Te Kōti Taiao o Aotearoa - Environment Court |
| Judge(s) | Judge Thompson, Judge Fox and Commissioner Howie |
| Earlier/later decisions | |
| Legislation cited | Resource Management Act 1991, ss 6, 7, 8, 32, 75 87A, 274 and 290A, Te Ture Whenua Māori Act 1993, s 338. |
| Cases cited | |
| Overview and result | Appeal by the Maungaharuru-Tangitu Trust (the Trust) from decisions made by the Hastings District Council on issues relating to waahi taonga and the Councils Proposed District Plan (PDP). The appeal deals with eight sites - four Maungaharuru sites, and four coastal ones. The sites are generally on rural, privately owned land. The coastal sites are near the coast north of Napier and the Maungaharuru sites are near the Titi-okura Saddle. The Council and land owners also made submissions to the Court. Held, for seven of the eight sites the Court considered that although the sites were waahi taonga, the evidence suggested that the level of protection and control sought by the Trust overreached what is needed to provide for their relationship with the sites and that their proposed draft rules would be an “unreasonable interference with the rights of the land owners.” (At [63].) In relation to one site (MTT86 Te Waka-o-Ngarangikataka Te Waka Range), the Court found that the ridgeline of Te Waka requires protection to keep it “clear of disruptions such as structures, production forestry and the like.” (At [46].) The Court proposed mediation to determine the boundaries of the sites saying it would decide those matters if agreement was not possible. |
Kōrerorero - Discussion
The Proposed District Plan (PDP) describes which activities owners can undertake on waahi taonga - defined in the PDP as "[a] treasured, prized and protected site" (at [11]).
The Court noted: (at [19])
the fundamental point remaining at issue is the types and extent of activities that might be permitted on the sites and, for those activities not permitted, what activity status they should be given to ensure that the values and attributes of those sites can be protected into the future.
The Trust argued that any activity on waahi taonga should be classified as "restricted discretionary, unless specified as permitted" (at [20]), as this would ensure that the activities are assessed against criteria relating to cultural matters.
Under s 87A of the Resource Management Act 1991 (RMA) a restricted discretionary activity is one in which “the consent authority's power to decline a consent, or to grant a consent and to impose conditions on the consent, is restricted to the matters over which discretion is restricted” (at [16]).
Positions of the parties
The Council had the general view that the sites met the definition of waahi taonga but that the outcomes “argued for by the Trust would impose unreasonable restrictions, inconvenience and/or cost on the landowners who may wish to undertake otherwise unexceptional farming activities.” (At [28].) The Council considered that the Trust had “given no examples of what consequences would flow from any activity permitted under the Council's rules that would impact on their relationship with the sites” (at [120]). In its view, day to day farming activities would be allowed, but protection would be given to the sites by limiting the effects of activities such as buildings and earthworks.
The owners of the land on or near the sites were concerned that they may be affected by the plan provisions which could restrict or prevent various activities on the sites. The owners did not want either the Trust's or Council rules imposed on them, but they accepted the Council’s were preferable.
The Trust considered that the Council is overly focussed on effects on land owners and its "rules give free reign to all but a few activities" (at [119]).
Discussion of Titi-a-Okura Saddle (Site MTT88 Titi-a-Okura)
The land owners were particularly interested in this site, as it covers 70 ha, and 16.22 ha of land of one particular couple, Mr and Mrs Raikes. They were concerned that the proposed provisions for the site only allow (what they regard as) “a very limited range of permitted activities, with other activities requiring resource consent as restricted discretionary activities.” (At [55].)
Mr Raikes also questioned the evidence of the Trust, and regarded traditional Māori lore as being contrary to the Holy Bible. The Court said Mr Raikes is entitled to his beliefs, however, s 6(e) of the RMA recognises and provides for “the relationship of Māori and their culture and traditions with their...waahi tapu and other taonga”, and: (at [59])
What the law requires is the recognition of, and provision for, that relationship and neither this Court nor any other RMA decision-maker can dismiss s6 factors, simply because they may not share the beliefs of Māori, and their traditions and lore.
However, as with the majority of the sites, the Court considered that the Trust’s draft rules for the Saddle “would be an unreasonable interference with the rights of the land owners.” (At [63].)
Conclusion
The Court agreed with the Council's position and considered that its rules “strikes a reasonable and achievable balance between the protection of the values of the sites to Māori, and the ability of the owners of them to make reasonable, and respectful, use of them.” (At [122].)
In order to resolve the boundaries of sites for the purpose of the PDP the Court proposed that a representative from the parties attend a mediated conference. If no agreement is possible, then the Court said it would decide.
