February 2022 Māori Law Review
Māori Interest in Natural Resource Management: 2021 in review
Dave Randal, Thad Ryan, Frances Wedde, Chelsea Easter, Avikesh Chandra, Manahi Moana, Francesca Dykes, and Claudia van Zijl review legal developments from 2021 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 legal developments in the resource management field that are of particular relevance to Māori rights and interests.
2021 was a busy year, with many cases of note and other legal developments. In the past year, the courts have addressed, amongst other matters, the role of tikanga in Aotearoa's legal system and legislative Treaty provisions, the approach to the assessment and consideration of cultural effects for RMA projects, the extent to which proprietary interests in fresh water can be considered in the RMA context and a number of other matters. In addition, there have been a number of decisions of note under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act) and the Heritage New Zealand Pouhere Taonga Act 2014 (HNZPT Act).
More generally, it has been a busy year for RMA practitioners with significant legislative reform pressing ahead, and continuing jurisprudence following on from the NZ King Salmon[1] and RJ Davidson Family Trust decisions.[2]
This article discusses all of these matters as well as briefly summarising Treaty settlement milestones in 2021. Finally, we offer some thoughts on developments to watch for in the year ahead.
Role of tikanga and legislative Treaty provisions
Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127
In this decision, the Supreme Court confirmed that tikanga plays a formal and important role in Aotearoa's legal system, and that when interpreting Treaty of Waitangi provisions in statute (also known as 'Treaty clauses') a broad and generous approach should be taken.
The case related to an application by Trans-Tasman Resources Ltd (TTR) for marine consents and marine discharge consents under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the EEZ Act), seeking to enable seabed mining in the South Taranaki Bight.
As discussed in our previous articles, the decision-making committee (DMC) of the Environmental Protection Authority had decided to grant the consents. However, the High Court quashed the DMC's decision and referred the matter back for reconsideration. TTR then appealed to the Court of Appeal, which dismissed the appeal and upheld the High Court's decision. The Court of Appeal emphasised that all customary rights and interests in taonga, referred to in the Treaty, are "existing interests" (as defined in the EEZ Act), regardless of whether they have been expressly recognised in a Treaty settlement.
TTR appealed the Court of Appeal decision to the Supreme Court, which unanimously dismissed the appeal. The Supreme Court found that tikanga must be taken into account as "other applicable law" under s 59(2)(1) of the EEZ Act, where its recognition and application is appropriate to the particular circumstances of the consent application at hand. In reaching this conclusion, the Court drew on the approach to tikanga in its earlier decisions such as Takamore v Clarke, which recognised that tikanga is "part of the values of the New Zealand common law".[3] Thus, the Supreme Court has again explicitly affirmed that tikanga is a part of the law of New Zealand.
The decision also considered s 12 of the EEZ Act, which sets out the ways in which the EEZ Act recognises and respects "the Crown's responsibility to give effect to the principles of the Treaty of Waitangi". The Court commented that s 12 "illustrates the trend in more recent statutes to give a greater degree of definition as to the way in which the Treaty principles are to be given effect and a departure from the more general, free standing Treaty clauses like that in s 4 of the Conservation Act".[4]
The Supreme Court found that s 12 provided a "strong direction", requiring the DMC to "take into account the effects of the activity on existing interests in a manner that recognises and respects the Crown’s obligation to give effect to the principles of the Treaty".[5]
Overall, the Court concluded that "Treaty clauses should not be narrowly construed. Rather they must be given a broad and generous construction".[6] As such, the Supreme Court found that "an intention to constrain the ability of statutory decision-makers to respect Treaty principles should not be ascribed to Parliament unless that intention is made quite clear."[7] Williams J stated that "I would merely add that this question must not only be viewed through a Pākehā lens".[8]
The decision is significant in other respects, including the finding by the majority that s 10(1)(b) of the EEZ Act imposes an 'environmental bottom line', in the sense that where the discharge of a harmful substance will cause pollution from which the environment cannot be protected by regulation, then consent should not be granted.
Assessment of cultural effects
Tauranga Environmental Protection Society Inc v Tauranga City Council [2021] NZHC 1201
This case was an appeal to the High Court of the Environment Court's decision (Tauranga Environmental Protection Society Inc v Tauranga City Council [2019] NZEnvC 1) to uphold consents granted by the Tauranga City Council to Transpower for the realignment of transmissions line – including the location of a large power pole next to the Maungatapu Marae of Ngāti Hē.
The decision reiterates that cultural effects need to be given careful and serious consideration by decision-makers, and that the planning framework can set cultural 'bottom lines' that mean alternatives to options that would have adverse effects on cultural values need to be very carefully considered. As such, the decision is a useful precedent for Māori groups opposing projects on cultural grounds.
The Environment Court had held that the removal of the existing line would have positive effects, which were significantly greater than the adverse effects, including on the Marae and the kōhanga reo. The Environment Court had also held that the alternatives were not practicable due to the costs associated with them.
Tauranga Environmental Protection Society appealed the Environment Court's decision and the Marae Trustees supported the appeal as an interested party.
The effects on Ngāti Hē, and how those effects should be dealt with, were an important consideration for the Environment Court, and the High Court. However, in considering those effects, the High Court found that "the Environment Court's conclusions … did not reflect the evidence before it" noting that:[9]
Having set out in 67 paragraphs the extent and depth of Ngāti Hē’s firm opposition to the proposal, in one paragraph the Court effectively found that the adverse cultural effects would be outweighed by the beneficial effects. That involved the Court saying explicitly that it did not find that the proposed realignment would have cumulative adverse cultural effects on Ngāti Hē, even though it had found Ngāti Hē clearly considers it would.
…
[65] The effect of the Court’s decision was to substitute its view of the cultural effects on Ngāti Hē for Ngāti Hē’s own view. The Court is entitled to, and must, assess the credibility and reliability of the evidence for Ngāti Hē. But when the considered, consistent, and genuine view of Ngāti Hē is that the proposal would have a significant and adverse impact on an area of cultural significance to them and on Māori values of the [Outstanding Natural Feature / Landscape], it is not open to the Court to decide it would not. Ngāti Hē’s view is determinative of those findings.
The High Court also found that the Bay of Plenty Regional Coastal Environment Plan (RCEP) imposed 'bottom lines' in terms of effects on cultural values. The High Court found that the Environment Court erred in not considering whether alternative options would avoid those types of effects.
In reaching this conclusion, the Court stated that "the emphasis on the Treaty of Waitangi and cultural values, and potential for cultural bottom lines in the RMA and planning instruments suggests that cultural values should not be underestimated".[10] Further, the Court noted that:[11]
[147] It is always difficult to put a price on culture, which is what is implied in a finding that the cost of an alternative is "too" high. That conclusion should not be too readily reached. And a conclusion has to be that of the Court, not of the applicant.
Finally, while the Court did not directly rule on the submission of the Marae that Transpower has an obligation to address the location of the pole as a breach of the Treaty of Waitangi, it noted that "there is no doubt that further discussion between Transpower and Ngāti Hē over these issues would be consistent with the principles of the Treaty of Waitangi, given the unhappy history of the transmission lines at issue".[12]
Having found that the Environment Court had made errors of law, the High Court remitted the decision to the Environment Court. Transpower applied for leave to appeal the High Court decision. However, in Transpower New Zealand Ltd v Tauranga Environmental Protection Society Inc [2022] NZCA 9, the Court of Appeal declined the application for leave.
Proprietary interests in fresh water in the context of the RMA
Te Whanau a Kai Trust v Gisborne District Council [2021] NZEnvC 115
The Environment Court considered whether planning instruments can recognise and give force to proprietary interests in fresh water, and in particular customary or native title. Te Whānau a Kai Trust sought provisions to that effect in the proposed Gisborne Regional Freshwater Plan.
By way of background, the Waitangi Tribunal's Stage 2 Report on the National Freshwater and Geothermal Resources Claims (Stage 2 Report) concluded that the issue of Māori ownership of natural and physical resources was (deliberately) excluded from the RMA.
In contrast, the MACA Act has introduced a specific framework and process for considering claims of customary interests in the marine and coastal area, and for subsequent recognition of those interests in RMA instruments, as discussed later in this article. However, no equivalent framework exists for fresh water.
In the Stage 2 Report, the Waitangi Tribunal expressly encouraged a test case be taken to consider Māori customary interests in fresh water (along the lines of the seminal Ngāti Apa case[13] in respect of the foreshore and seabed).[14] Ngāi Tahu has subsequently lodged a claim in the High Court, seeking a declaration of its rangatiratanga over fresh water in its rohe, and additional declarations related to the design of a new regime for the governance of fresh water.
In the meantime, Te Whānau a Kai's appeal, in the context of an appeal against an RMA planning instrument, has progressed through the Environment Court and to the High Court.
Te Whānau a Kai claimed that the Council's decisions and version of the Freshwater Plan failed to properly recognise and provide for its relationship with freshwater resources, "including [their] proprietary interest therein" and an alleged failure to recognise their kaitiakitanga over fresh water.[15] As part of the relief sought, Te Whānau a Kai proposed various amendments to the Plan, including changes which they considered would better recognise their customary rights.[16]
Te Whānau a Kai's position was that:
- it had a range of customary rights and interests, including of native title, over the freshwater resources in its rohe; and
- the Freshwater Plan should include provisions recognising and giving force to those rights and interests, including to ensure that it recognised and provided for the relationship of Te Whānau a Kai with its freshwater resources, and its kaitiakitanga role, in terms of section 6(e) and 7(a) of the RMA.
The Environment Court found that it did not have the jurisdiction to recognise proprietary interests, including native title, in fresh water. The RMA regulates the management and use of resources, rather than its ownership. Rather than including the provisions sought by Te Whānau a Kai, the Environment Court amended the Freshwater Plan to include provisions that it considered would address the concerns of Te Whānau a Kai to the extent permissible and appropriate under the RMA framework. Those provisions did not extend to directly recognising or confirming Te Whānau a Kai customary or proprietary interests in fresh water.
The Court stated that "the statutory framework under the RMA would not enable this Court, or the Council, to recognise and provide for a proprietary right in freshwater of the kind claimed by Te Whānau a Kai. To the extent that the Council must engage with the nature of Te Whānau a Kai's relationship with freshwater as part of its consideration of the Part 2 RMA provisions, the weight of authority clearly tells against recognition of proprietary rights and interests".[17]
Te Whānau a Kai appealed this decision to the High Court. The High Court hearing took place in April 2022 and its decision is expected later this year.
In the meantime, and in advance of a substantive hearing on the Ngāi Tahu claim or any legislative or policy progress in addressing Māori claims to fresh water, the question of whether, and if so how, Māori customary and in particular proprietary interests in fresh water should be considered remains unresolved.
Wāhi tapu status
Maungaharuru-Tangitū Trust v Hastings District Council [2021] NZEnvC 98
As discussed in our previous articles, there is now a line of Maungaharuru-Tangitū Trust decisions concerning the provisions relating to sites of wāhi tapu and wāhi taonga in Hastings District Council's Proposed District Plan. The Environment Court initially determined that all the sites in issue were wāhi tapu and what rules should apply to each, but did not determine the extent of the sites. On appeal, the High Court remitted the matter to the Environment Court for reconsideration. The "key difficulty" with the Environment Court's decision was that it "proceeded straight to a question of balancing the rights and interests of the private landowners and tangata whenua without clearly identifying the precise nature of the wāhi tapu/wāhi taonga interest, the potential adverse effect of particular activities, and how the proposed provisions of the District Plan address this".[18]
In light of the High Court's views and further submissions, the Environment Court has now revised its previous decision. Eight sites in the Proposed District Plan were at issue, seven of which are on privately owned pastoral farming properties and the other on privately owned land.
The Court analysed each of the eight sites at issue and ultimately held "that the evidence suggests that the level of protection and control sought by MTT overreaches what is needed to provide for the relationship of the MTT hapū with the site, and that their rules would be an unreasonable interference with the rights of the land owners".[19] The Court held that the rules proposed by the Council, which sought to protect the sites while avoiding blanket restrictions on farming activities, were more appropriate.
Report and decision of the Board of Inquiry into the Watercare Waikato River Water Take Proposal (Watercare Decision)
The Board of Inquiry's Watercare Decision was issued in January 2022. The decision relates to Watercare Services Limited's (Watercare) application for resource consents to take water from the Waikato River. The majority of the Board, in a finely balanced decision, granted all consents which were applied for, subject to further amendments and conditions.
Despite the eventual grant of consents, the Board found, in relation to cultural effects, that:
- there had been a lack of meaningful engagement with local tangata whenua;[20]
- it would have expected some form of dialogue to have occurred with the Waikato River Authority, given the context of the co-governance arrangements provided for by the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, however, that had not occurred;[21] and
- the lack of cultural impact assessment by Watercare in its application was "a significant shortfall".[22]
The Board also found that there had been inadequate assessment of Te Ture Whaimana, which is the Vision and Strategy developed under the Waikato River Settlement.[23] Further, Watercare had not fully achieved Policy 2 of the NPSFM which requires that tangata whenua are actively involved in freshwater management.[24]
Despite these issues, the majority of the Board granted the resource consents, holding that the failures could be addressed through the imposition of a further condition of consent to require Watercare to invite tangata whenua to join a committee or board.[25] One Board member took a different view and would have declined the applications.
The decision demonstrates some of the risks and opportunities that persist in the RMA system for Māori, even where bespoke arrangements are in place (such as is the case for the Waikato River). On the one hand, the Board of Inquiry confirmed the importance of consultation with tangata whenua, and the respect to be given to co-governance arrangements provided for by Treaty settlement and statute. However, on the other hand, the Board held that deficiencies in the consultation process can be remedied late in the process by imposition of appropriate conditions.
Te Whakakitenga o Waikato has appealed the Board's decision to the High Court.
Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act)
2021 was a significant year for the development of case law under the MACA Act, with the High Court issuing its first substantive decision under the Act.
In Re Edwards (No 2) [2021] NZHC 1025, the High Court issued a 215-page judgment,[26] which addressed issues under the Act that had not previously been addressed by the Courts. As acknowledged by the Court, the decision will have implications for the 200 odd other claims under the MACA Act currently before the Court; and its effects are already being felt in other proceedings.
Some of the key rulings of the Court are set out below:
- Standard and burden of proof: The Court held that the burden is on applicants for recognition orders to prove the positive elements of the tests for PCRs (under s 51) and CMT (under s 58). However, applicants do not have the obligation to prove that their customary rights have not been extinguished. That burden lies with any party opposing recognition orders. The standard of proof is the civil burden of proof – that is, on the balance of probabilities but s 106(3) creates a presumption in favour of non-extinguishment.[27]
- Holds the specified area in accordance with tikanga: One of the positive elements for applicants to establish in order to make out a claim of CMT under s 58 is that the applicant group "holds the specified area in accordance with tikanga". The Court held that "holds" does not incorporate proprietorial interests from common law or other statutes dealing with land. Instead, the focus is on whether the applicant group exercised tikanga.[28] The Court observed that because the types of recognition orders available under the Act relate to sui generis property interests that are very different, and much more limited than the fee simple type of property rights, it would be wrong to import into s 58 a requirement that applicants demonstrate something in the nature of a proprietorial interest.[29]
- Exclusivity and "shared exclusivity": Section 58 also requires the applicant group to demonstrate "exclusive use and occupation" of the specified area from 1840 to the present day "without substantial interruption". The concept of "substantial interruption" is discussed further below. In terms of "exclusive use and occupation", the Court held that the concept of "shared exclusivity" is available under the Act.[30] This enables applicant groups with overlapping interests to together assert exclusive use and occupation of a specified area of CMCA on the basis of "shared exclusivity". In such cases, the Court may decide that the CMT is jointly held by the different applicant groups. However, the Act does not permit more than one CMT to be recognised in the same area.[31]
- Substantial interruption: The Court also considered whether raupatu, resource consents, permanent structures and third party use and occupation could amount to "substantial interruption" such that CMT should not be granted. The Court held:
- Raupatu did not amount to substantial interruption.[32]
- The physical activities authorised by a grant of resource consent may have the practical effect of amounting to substantial interruption, however, the fact that a resource consent has been issued does not automatically have that effect.[33] The activity itself therefore needs to be examined, including its nature, scale and intensity. The Court commented that activities relating to port infrastructure such as wharves, jetties or slip ways may well amount to substantial interruption; as might sewerage or other outfall pipelines. However, whether they do must be examined on the facts of each case, and not by applying a presumption.[34]
- Where a reclamation has led to the issue of a certificate of title on the basis that the land involved is above the line of mean high water springs, that area will be outside the CMCA and outside the application area. Other structures such as breakwaters, moles, groynes or seawalls fall outside the definition of reclaimed land and will need to be considered on the same basis as other third-party structures.[35]
- Whether a third-party structure has the effect of amounting to a substantial interruption is a question of fact.[36]
- Whether third-party activities amount to a substantial interruption is also a question of fact.[37] The Court noted that navigation and fishing will not of themselves amount to substantial interruption. Other activities, such as operation of a marine farm, may amount to substantial interruption, however, this must be determined on a case-by-case basis on the facts.
The cumulative effect of these rulings is to make it significantly more likely than may have previously been expected that applicant groups will be able to meet the statutory tests for CMT. As noted, the Court found that CMT could be recognised in Re Edwards (No 2). Since then, the Court has also recognised CMT in a number of other cases, including Re Reeder [2021] NZHC 2726 and Re Ngati Pahauwera [2021] NZHC 3599.
In terms of PCRs, the Court in Re Edwards (No 2) also considered the ambit of activities capable of recognition under s 51. The Court found that "a general and intangible exercise of maintaining rangatiratanga, or acting as kaitiaki, without manifestation of any physical activity or relation to any natural or physical resource, is precluded from being recognised as a PCR".[38] However, where the exercise of those practices is connected to a physical activity, that may be the subject of a PCR. This will have implications for a number of applications for PCRs before the Court that currently are framed very broadly and without reference to specific physical activities.
Another decision released in 2021 is Re Clarkson [2021] NZHC 1968. In this decision, the Court declined to grant CMT. This application was by a whānau group and related to a remote area on the eastern coast of the central North Island. Although the Court found that the applicant group had a connection to the application area, it also found that the applicant group did not have the support of other whānau / hapū with interests and/or applications. This decision raises some interesting issues in terms of an application by a whānau group, and also reflects the strength in applicants joining together under the banner of "shared exclusivity" when seeking recognition of CMT, as was the case in Re Edwards (No 2), Re Reeder and (to some extent) Re Ngāti Pāhauwera.
Heritage New Zealand Pouhere Taonga Act 2014 update
Ngāti Paoa Trust Board v Heritage New Zealand Pouhere Taonga [2021] NZEnvC 75
In our 2019 and 2020 reviews we discussed the SKP v Auckland Council line of cases which related in part to a mandate dispute between the Ngāti Paoa Trust Board (Trust Board) and the Ngāti Paoa Iwi Trust (Iwi Trust) and consultation requirements in the context of a resource consent application. In Ngāti Paoa Trust Board v Heritage New Zealand Pouhere Taonga [2021] NZEnvC 75 the issue of consultation regarding the Trust Board and Iwi Trust was considered in respect of the Heritage New Zealand Pouhere Taonga Act 2014 (HNZPT Act).
The archaeological authorities granted under the HNZPT Act that were the subject of the appeals related to Mokoia Pā, which is a site of particular cultural, historical and spiritual significance to Ngāti Paoa.[39] There were two authorities in question:
- Auckland Transport had plans to construct a busway bridge crossing the Tamaki River between the Mokoia headland and Pakuranga as part of a wider public transport improvement project. Part of the alignment traverses Mokoia Pā. Auckland Transport therefore proposed a commemorative park to mark the location of Mokoia Pā with five mahi toi to serve as monuments to Ngāti Pāoa tūpuna. Auckland Transport was granted an authority under section 56(1)(b) of the HZNPT Act to carry out an exploratory archaeological investigation in respect of the proposed mahi toi installation sites.
- Mr Jones and Ms Ndukwe were also granted an archaeology authority under sections 44(a) and 48 of the HNZPT Act in respect of works associated with building their house. Their section on nearby Bridge Street was within the outer defensive ditch of Mokoia Pā.
The Trust Board considered that the wāhi tapu at Mokoia Pā should not be further disturbed due to the special significance of the site and the likelihood that the ground contained koiwi. It opposed both of the archaeological authorities granted and brought appeals to the Environment Court which were heard jointly. The Iwi Trust did not oppose the grant of either archaeological authority.
Of relevance more broadly was the Court's discussion of consultation requirements. The Trust Board submitted that it was uncontested that it was not consulted in relation to either application.[40] Auckland Transport and Mr Jones and Ms Ndukwe respectively had engaged with the Iwi Trust. Auckland Transport had also invited the Trust Board to be part of its consultation, but that invitation had not been taken up.[41]
The Court accepted that persons who hold mana whenua are best placed to identify the potential cultural effects on Māori of a proposal and that there was no duty of consultation in relation to either application. After outlining the legal principles underpinning consultation, as set out by the senior courts, the Court observed that appeals under the HNZPT Act are not an appropriate forum to raise issues between the Trust Board and Iwi Trust as to mandate or relative standing or priority, and no party had contended that was so. The Court therefore concluded that:[42]
Ultimately, the law does not preclude any applicant for an authority from consulting with any person who may be able to give an informed response about any effect that a proposal may have on Māori cultural and other interest.
Ultimately the Court preferred the evidence of the Iwi Trust witnesses as to the effects on Māori cultural values and dismissed the appeals.
This case therefore demonstrates that the Environment Court will take a similar approach to mandate disputes when considering archaeological authority appeals as it has taken in the RMA context. That is, where there is conflicting evidence on who holds mana whenua or on the cultural effects of granting an archaeological authority, the Court will assess the matter on the evidence.
Poutama Kaitiaki Charitable Trust v Heritage New Zealand Pouhere Taonga [2021] NZEnvC 165
In our previous articles we have discussed decisions under the RMA which considered whether the Poutama Kaitiaki Charitable Trust (Poutama) has status as mana whenua under that Act.
Similarly, the Environment Court has also considered whether Poutama come within the meaning of tangata whenua under the HNZPT Act such that they should have been consulted by HNZPT in deciding whether to grant archaeological authority to First Gas Limited to remove 270 metres of redundant and unsafe pipeline from the Kapuni gas line in North Taranaki.
The Court agreed with the Heritage New Zealand Pouhere Taonga (HNZPT) position that the term "tangata whenua" in the context of the HNZPT Act means more than simply identifying as Māori. It requires a whakapapa connection to the land.[43] The Court also rejected an argument by Poutama that Ngāti Tama derive authority from their Treaty settlement,[44] endorsing the Court's comments on this point in Director-General of Conservation v Taranaki Regional Council [2019] EnvC 203.[45]
The Court concluded that Poutama are not tangata whenua as that term is used in the HNZPT Act.[46] The Court also held that there was a lack of clarity about potential impacts on a grave site and therefore that Poutama were not a "directly affected person" for the purposes of section 58.[47]
As such, the appeal was dismissed.
Other reforms and developments
Proposed RMA reform
Following the release of the Report of the Resource Management Review Panel in July 2020, the Government announced in early 2021 its intention to replace the RMA with three new pieces of legislation as follows:
- The Natural and Built Environments Act (NBA);
- The Strategic Planning Act (SPA); and
- The Climate Adaptation Act (CAA).
The 'Exposure Draft' of the NBA was released in June 2021. The NBA is intended to improve recognition of te ao Māori and to that end the draft:
- includes "Te Oranga o te Taiao" in the Act's purpose. This concept is intended to encapsulate the intergenerational importance of the health and well-being of the natural environment; and
- requires decision-makers to "give effect to" the principles of Te Tiriti, replacing the current RMA requirement to "take into account" those principles.
The Select Committee released its report in November 2021. The Select Committee supported the inclusion of Te Oranga o te Taiao in the Bill's purpose but recommended that further work be undertaken to better define and support this concept in the legislation including through engagement with iwi and Māori groups.
The Select Committee also recommended the inclusion of further direction in the NBA on how the principles of Te Tiriti o Waitangi are to be given effect to, including local government's role in the Treaty partnership. The Select Committee further recommended that consideration be given to what role the new proposed National Planning Framework could have in giving additional expression to the principles of Te Tiriti o Waitangi.
The Government released its response to the Select Committee's report in February 2022 and has committed to introduce the Natural and Built Environments Bill to the House this year alongside the Strategic Planning Bill.
One of the key intended features of the new legislative regime is a stronger focus on planning for development. That will likely make it even more important that Māori focus on plan making processes (like the process addressed in the Port Otago case below), in order to influence the type of development that will ultimately be permitted. The exact nature of the planning regime under the new legislative regime is yet to be determined, and is keenly anticipated.
Port Otago Limited v Environmental Defence Society Incorporated [2021] NZCA 638
In our 2017, 2018 and 2019 reviews, we discussed the heightened importance of directive policies in RMA planning instruments, including following the High Court's decision in Environmental Defence Society v Otago Regional Council [2019] NZHC 2278 (Port Otago). This is an important line of cases in terms of addressing tikanga and other issues of interest for Māori, because RMA planning instruments and in particular directive policies can have a determinative influence on what type of development will be allowed in any given location.
The Court of Appeal dismissed Port Otago's appeal. The Court held that the proposed regional policy statement (PRSP) did not give effect to the NZCPS in the manner required by King Salmon as "a bottom line requiring adverse effects be "avoid[ed]" cannot be substituted with "avoid, remedy or mitigate"".[48] The Court considered the parties had "overcomplicate[d] a simpler enquiry" that had an "obvious" answer.[49] 'Avoid, remedy or mitigate' dilutes the requirement to avoid and "invites a decision-maker instead to reach a broad judgment".[50] This could permit, rather than avoid, adverse effects on natural character in areas of the coastal environment with outstanding character (and significant adverse effects on natural character in other areas of the coastal environment).[51]
The Court of Appeal concluded that:[52]
The short answer in this appeal is that a regional policy statement fails to give effect to an NZCPS policy requiring adverse effects in an area of outstanding natural character to be avoided, by instead providing for adverse effects in such areas to be avoided, remedied or mitigated. Correct application of the principles laid down in King Salmon compel that conclusion.
Of interest, the Court also observed:
- Policies 7 and 9 are not in conflict with the avoidance polices. Instead, the NZCPS contains a directive hierarchy: the avoidance policies have relatively clear environmental bottom lines and policies 7 and 9 contain lower level degrees of direction. The avoidance policies should not be diluted to reconcile them with other policies in the NZCPS. There is no fundamental ambiguity and context does not require an artificial approach to be taken to construction.[53]
- The High Court erred in inferring that an inevitable effect of King Salmon is that implementing avoidance policies in the NZCPS results in creating prohibited activities that cannot obtain resource consent. Activity status is set in regional and district plans, not regional policy statements. The avoidance policies require adverse effects to be avoided, not activities to be avoided. Whether an activity's adverse effect can be avoided will depend on the facts and context of a specific proposal.[54]
- The environment has been shaped by the effects of activities that have been taking place and the avoidance policies apply to the environment as it exists now.[55]
The Supreme Court has granted leave to Port Otago to appeal the Court of Appeal's decision. Parties to a Supreme Court appeal regarding the East West Link Road in Auckland have also been invited to make submissions to the Court given that appeal also deals with the meaning of 'avoid' in the NZCPS. The outcome of the appeal in 2022 will be awaited with interest by resource management practitioners.
Treaty settlement milestones
Since our last update, progress on a number of Treaty of Waitangi Deeds of Settlements has been made, namely between the Crown and:
- Whakatōhea, initialled on 23 December 2021;
- Te Ākitai Waiohua, initialled on 23 December 2021;
- Maniapoto, signed on 11 November 2021;
- Ngāti Kahungunu ki Wairarapa Tāmaki nui-a-Rua, signed on 29 October 2021; and
- Mōkai Pātea Nui Tonu, signed Terms of Negotiation on 20 September 2021.
The Moriori Claims Settlement Act 2021 has also come into effect since 25 November 2021.
Developments to watch for in 2022
As mentioned throughout this article, there are a number of significant developments to watch out for during the remainder of this year, notably:
- High Court / Court of Appeal decisions in Te Whānau a Kai Trust v Gisborne District Council; the Watercare Decision; and Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council;
- The Supreme Court's decision in Port Otago Limited v Environmental Defence Society Incorporated;
- Possible progress in the Ngāi Tahu High Court claim in respect of fresh water; and
- The introduction and progress of the Natural and Built Environments and Strategic Planning Bills.
Ngā kupu āpiti - Notes:
[1] Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2014] NZSC 38.
[2] R J Davidson Family Trust v Marlborough District Council [2018] NZCA 316.
[3] Takamore v Clarke [2012] NZSC 116 at [94]. Cited in the TTR Decision at [165].
[4] Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127 per Ellen France and William Young JJ at [150].
[5] At [149].
[6] At [151].
[7] At [151].
[8] At [297].
[9] Tauranga Environmental Protection Society Inc v Tauranga City Council [2021] NZHC 1201 at [59](a).
[10] At [147].
[11] At [147].
[12] Te Whānau a Kai Trust v Gisborne District Council [2021] NZEnvC 115 at [153].
[13] Ngati Apa Ki Te Waipounamu Trust v Attorney-General [2004] 1 NZLR 462.
[14] Waitangi Tribunal, The Stage 2 Report into the National Freshwater and Geothermal Resources Claim (Wai 2358, 2019) at 103-115, and in relation to the test case, at 564.
[15] At [10].
[16] At [11]-[12].
[17] At [84].
[18] Maungaharuru-Tangitū Trust v Hastings District Council [2021] NZEnvC 98 at [3].
[19] At [148].
[20] Watercare Decision at [236].
[21] At [238].
[22] At [240].
[23] At [251].
[24] At [256].
[25] At [298].
[26] The decision itself is 168 pages, with the remaining pages being appendices.
[27] Re Edwards (No 2) [2021] NZHC 1025 at [99] – [100].
[28] At [119] – [120].
[29] At [128].
[30] At [168].
[31] At [169].
[32] At [204].
[33] At [224].
[34] At [230].
[35] At [250].
[36] At [251].
[37] At [256].
[38] At [379].
[39] It is also recorded on the New Zealand Archaeological Association archaeological site register.
[40] At [36].
[41] At [38].
[42] At [41].
[43] At [49].
[44] At [51].
[45] We discussed this case in our 2019 review.
[46] At [101].
[47] At [110] – [111].
[48] Port Otago Limited v Environmental Defence Society Incorporated [2021] NZCA 638 at [79].
[49] At [78].
[50] At [79].
[51] At [79].
[52] At [87].
[53] At [82].
[54] At [84]-[84].
[55] At [86].
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; (2020) October Māori LR; and (2021) March Māori LR.
This article was prepared by Dave Randal, Thad Ryan, Frances Wedde, Chelsea Easter, Avikesh Chandra, Manahi Moana, Francesca Dykes, and Claudia van Zijl in Buddle Findlay's resource management and Māori law team, based in Wellington. Buddle Findlay acts for clients directly involved in several of the cases discussed in this article, namely Director-General of Conservation v Taranaki Regional Council, Te Whānau a Kai Trust v Gisborne District Council, Watercare Decision, and Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council.
