Francesca Dykes, Hinemoana Markham-Nicklin, Chelsea Easter, Cerridwen Bulow, Frances Wedde, and Dave Randal review legal developments from 2024 relating to Māori interests in natural resources. 

Ngā mihi nui ki a koutou – Buddle Findlay is again grateful for the opportunity to present this overview of legal developments in the resource management field that are particularly relevant to Māori interests and to practitioners advising Māori.

2024 was another tumultuous year in the area, as continued widespread dissatisfaction with the Resource Management Act 1991 (RMA) gave impetus for the Government to implement the first phases of its policy agenda regarding natural resources and infrastructure. The Fast-track Approvals Act 2024 (FTAA) garnered considerable attention and will continue to do so in 2025 and beyond, as many proponents of infrastructure and other developments seek to make use of the new system.

A fresh replacement of the RMA is also looming on the horizon, with Te Tiriti and Māori issues likely to be central to the reform process. With legislative provisions relating to Te Tiriti a hot topic in the wake of the failed Treaty Principles Bill, current indications are that the new law may contain a 'descriptive' Treaty provision rather than continuing with a general obligation akin to section 8 of the RMA (which currently requires persons exercising functions or powers under the RMA to "take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi)").

Against this backdrop of uncertainty and change, the Courts have continued to decide cases under the prevailing orthodoxy of the RMA – with the Supreme Court issuing another seminal decision setting out its (still not unanimous) views on how the machinery of the RMA operates – and the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA).

In this round-up of key developments in 2024, we summarise:

• how Māori interests are provided for in the new fast-track consenting regime;
• the Supreme Court's important decision in respect of the East West Link project in Auckland, and a subsequent Environment Court decision that provides a worked example relevant to Māori interests;
• a number of other decisions addressing tikanga and Māori cultural values in RMA processes;
• key MACA-related developments and Treaty settlement milestones; and
• a few developments to watch for in 2025.

Kōrerorero – Discussion

Fast-track consenting

The FTAA loomed large over 2024. The highly controversial initial version of the Bill, which would have given the ultimate authority to approve projects to a troika of Ministers, eventually gave way to a scheme where decision-making instead sits with independent expert panels (and is thus closer in effect to its predecessor, the COVID-19 Recovery (Fast-track Consenting) Act 2020).

As the dust settles, it is clear that the FTAA remains a significant piece of legislation for Māori entities and needs to be well understood by resource management practitioners. For Māori entities looking to undertake large developments (of which a number are listed as being automatically eligible to use the process), the FTAA promises an efficient pathway to expedite statutory approvals and deliver projects, although success is not guaranteed. More generally, various Māori entities will be invited to comment on applications and have an opportunity to influence decisions. Specific provisions in the FTAA relate to Treaty settlement entities, owners of certain Māori land, and entities with recognised interests in the takutai moana (or seeking such recognition).

By way of a brief summary, key relevant aspects of the FTAA include the following:

• the FTAA provides a 'one-stop shop' process whereby a variety of statutory approvals can be sought at once, including resource consents, designations, concessions, archaeological authorities, wildlife authorities, and marine consents;
• the legislation contains a list of 149 projects that are automatically able to use the process and allows others to be referred (by the Minister for Infrastructure) to panels for consideration (with the list including at least one project that has previously been successfully opposed by iwi, namely the proposal by Trans-Tasman Resources Limited to mine iron sands in the South Taranaki Bight);
• each referral decision by the Minister is informed by a report of the Treaty settlement and other arrangements and Māori rights and interests that are relevant to the application in question, and any comments provided (on the Minister's invitation) by relevant iwi authorities and others;
• certain types of activities are ineligible to use the process, such as activities relating to certain kinds of Māori land or affecting certain recognised customary rights (without approval);
• applications must include information which ensures relevant Treaty settlement and other arrangements, Māori land, and statutory areas are identified and considered;
• applicants are expected to engage with relevant iwi and hapū, Treaty settlement entities, and Takutai Moana applicant groups (among others) and must provide a record of the engagement, including a statement of how it has informed the project;
• applications will not be 'notified', but the owners and occupiers of adjacent land and various listed entities will be invited to 'comment' on the application, including relevant iwi authorities, Treaty settlement entities, protected customary rights groups, customary marine title groups, and applicants under MACA;
• the FTAA contains various specific provisions to uphold specific settlement redress and existing arrangements (including mana whakahono ā rohe and joint management agreements);
• in making its substantive decision, an expert panel must give more weight to the purpose of the FTAA – to "facilitate the delivery of infrastructure and development projects with significant regional or national benefits" – than to considerations under other relevant legislation, and the panel can only decline the application if it considers that the adverse impacts of a project "are sufficiently significant to be out of proportion to the project’s regional or national benefits", even after taking into account any conditions that the panel may impose; and
• statutory timeframes are generally very constrained, hearings are not required to be held, and appeal rights are limited.

The FTAA does not refer to the principles of the Treaty of Waitangi, but section 7 requires all persons performing and exercising functions and powers under the FTAA (not including the courts) to act in a manner that is consistent with the obligations arising under existing Treaty settlements and with recognised customary rights. This obligation is carried through to section 82, which requires the expert panel to consider whether granting an approval would comply with section 7.

Dozens of project developers are expected to make use of the FTAA process during 2025. It will be interesting to see how these provisions are applied to projects that strongly engage Māori interests; watch this space.

National direction and reconciling conflicting policies

Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Transport Agency [2024] NZSC 26, [2024] 1 NZLR 241

In previous updates we have explained 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. That ground-breaking decision brought opportunities and risks for Māori and underscored the importance of participating in plan-making processes to achieve important outcomes for Māori, such as protecting cultural values and facilitating Māori development.

In our review of 2023, we signalled that the Supreme Court's impending decision on the East West Link project was expected to provide further clarity on directive policies and the meaning of 'avoid' in the resource consent and designation sphere. The Court issued its decision on 11 April 2024.

The case involved an appeal against the grant of resource consents and approval of designations for a new four-lane arterial connection in Auckland. The project traverses 'significant ecological areas' (SEAs) as defined in the Auckland Unitary Plan (AUP) and therefore requires consents under the AUP for non-complying activities. The AUP contains policies to 'avoid' adverse effects on SEAs, in line with Policy 11 of the New Zealand Coastal Policy Statement (NZCPS).

A Board of Inquiry had approved the project, and its decision was upheld by the High Court. Forest & Bird appealed to the Supreme Court.

Key issues included whether the project adheres to the AUP directive to avoid adverse effects on SEAs and, even if not, whether the project may nonetheless pass through the 'gateway' in section 104D of the RMA (which allows a proposal involving non-complying activities to be approved if not contrary to the objectives and policies of the relevant plans).

Forest & Bird's appeal was allowed by the majority of the Supreme Court (comprising Winkelmann CJ, Ellen France and Williams JJ).

The majority's reasons are complex and nuanced and merit close reading by practitioners. In short, however, to understand whether a proposal is consistent with relevant planning objectives and policies requires, the majority held, a 'fair appraisal' of these documents as a whole, rather than considering consistency on a policy-by-policy basis in an isolated and decontextualised manner.^[2] This does not mean that all the objectives and policies can be blended together; "rather, attention must be paid to relevant objectives and policies both on their own terms and as they relate to one another in the overall policy statement or plan."^[3]

The Court also endorsed the approach taken by the Court of Appeal in Davidson^[4] to the issue of the role of Part 2 of the RMA in consent and designation decision-making, confirming that:

• Part 2 cannot subvert planning documents;^[5] but
• decision-makers can have regard to Part 2 if "it is appropriate to do so" (as that is the implication of the words "subject to Part 2"in section 104).^[6]

Whether it is "appropriate" to consider Part 2 will depend on the planning documents:^[7]

• Where the relevant plan provisions have clearly given effect to Part 2, there may be no need to refer back to Part 2 and it would be inconsistent with the scheme of the RMA to override those plan provisions through recourse to Part 2.
• It is appropriate to have regard to Part 2 if the above is not the case or the plan has not been competently prepared (i.e. the plans have not provided a coherent set of policies that provide for clear environmental outcomes or appropriately reflect Part 2).

Significantly, the Supreme Court also confirmed that, notwithstanding the above, there will be scope for "genuine, on-the-merits exceptions" to pass through stringently worded policies,^[8] with the Supreme Court concluding that:^[9]

A residual discretion to prevent outcomes plainly inconsistent with the purpose of the RMA must be preserved in order to ensure that, when applied to difficult cases, the policies do not subvert that purpose.

Any such exception will require a careful assessment of the proposal against the plans as a whole.^[10]

Applying this approach, the Supreme Court considered the provisions of the AUP (in light of the NZCPS) and found the AUP "attempted to 'thread the needle'" between the NZCPS "avoid" policy and prohibiting all development in SEAs, and permitting it as a fully discretionary activity.^[11] In effect, the Court found the AUP validly provided a limited exception where significant infrastructure could locate in SEAs, in circumstances where:^[12]

1. it is a necessary – and not just a desirable – solution by reference to functional or operational need, the regional or national benefit obtained, and the absence of any practicable alternative locations or solutions;
2. adverse effects that cannot be avoided have been remedied or mitigated to a standard that corresponds with the significance of the environment, ecosystem and/or species that ought to have been protected to an avoid standard; and
3. the benefits of the solution plainly justify the environmental cost of granting consent.

As such, the Supreme Court concluded that locating major infrastructure, such as the East West Link, in an SEA is not necessarily inconsistent with the AUP or Policy 11 of the NZCPS. However, the Court found that the Board of Inquiry and High Court had failed to identify and apply the correct assessment, and therefore the appeal was allowed and the matter remitted to the Board for reconsideration.

While the decision and the relevant AUP provisions are complex, the important take-outs for practitioners are:

• East West Link again reinforces the centrality of planning instruments for recognising and protecting one's interests.
• Plan provisions need to be interpreted (and drafted) in a sophisticated manner. The mere presence of the word 'avoid' in a policy does not automatically give rise to a strict environmental 'bottom line'; this may be the case, but arriving at that conclusion requires close analysis of the text and reading the words in their proper context.
• While it is still important for groups to engage in the plan change process to protect cultural, social and environmental values, or to enable Māori development (for example), a single, strongly worded policy is unlikely to suffice to achieve desired outcomes. Rather, a coherent, 'whole-of-plan' approach should be taken.

Te Rūnanga o Ngāti Whātua v Auckland Council [2024] NZHC 3794

This case concerned appeals against the Environment Court's interim decision on Waste Management NZ Limited's (Waste Management) application to develop a large regional landfill in the Wayby Valley. The Environment Court had indicated that it would likely grant consent, subject to the resolution of specific issues. The grounds of appeal raised by Te Rūnanga o Ngāti Whātua (Te Rūnanga) included that the Environment Court had erred in addressing competing mana whenua views and interests and in interpreting policies in the AUP.

As set out by the High Court in Ngāti Maru (discussed in a previous review^[13]), where iwi or hapū claim that a particular outcome is required to meet the directions in sections 6(e), 7(a) and 8 in accordance with tikanga Māori, resource management decision-makers must meaningfully engage with and respond to that claim. The High Court in this case found that the Environment Court was entitled to find that there were differing layers of interest, with Ngāti Manuhiri being more closely connected with the site of the landfill, in tikanga terms, than Ngāti Whātua, Te Uri o Hau and Ngāti Whātua Ōrākei.

Significantly, the High Court addressed the question of 'cultural bottom lines', applying Port Otago and East West Link (discussed above), in the context of directive policies relating to the recognition and protection of mana whenua interests and values.

Te Rūnanga submitted that the AUP effectively imposes 'cultural bottom lines'. There are several policies in the AUP that require significant adverse effects on mana whenua values associated with fresh water to be avoided (ie Policies E3.3(5) and (13)). As there were multiple divergent tikanga ā-iwi positions intersecting, the High Court considered that:

• there must be a proper jurisdictional and factual basis for the tikanga ā-iwi bottom line claim which requires the position to be:
  • clearly defined according to tikanga Māori and mātauranga Māori; and
  • clearly directed to the discharge of an obligation to Māori under the RMA; and
  • precisely linked to a specific resource management outcome; and
• the conflicting positions need to be reconciled as far as is possible.

Because the Environment Court had not yet decided to grant the consent, the High Court found it premature to consider whether there had been a breach of a tikanga bottom line. The difficult task of reconciling the divergent tikanga ā-iwi positions with sections 6(e), 7(a) and 8 of the RMA was for the Environment Court in making its final decision.

In considering whether the 'avoid' policies in the AUP equated to 'cultural bottom lines' such that the consent must be declined because significant adverse effects on Ngāti Whātua mana whenua values were not avoided, the Court applied the reasoning in Port Otago and East-West Link and reiterated the following key points:^[14]

• the meaning of the objectives and policies is to be ascertained from the text and in light of its purpose and context;
• policies that are directive, including 'avoid' and 'recognise' can have a greater potency than less directive policies;
• a proposal that contravenes an avoid policy must be closely scrutinised and must be necessary rather than desirable;
• Part 2 cannot be invoked to subvert a clearly relevant policy restriction; and
• notwithstanding the above, there will always be potential for exceptions, if there is a conflict such that the structural balancing analysis is required to find a solution.

The Court was not persuaded that Policy E3.3(5) was a 'cultural bottom line' policy in the sense 'bottom line' was used in King Salmon, Port Otago and East West Link, given the clearly conflicting mana whenua values in play:^[15]

• section 6(e), 7(a) and 8 demand recognition for all mana whenua values, which includes those of Ngāti Manuhiri, whose views conflicted with those of Ngāti Whātua;
• the policy must be reconciled with the objectives and policies at B6 that (for example) demand recognition of kaitiakitanga, tikanga and mātauranga of mana whenua – if it were a bottom line then the kaitiakitanga, tikanga and mātauranga of Ngāti Manuhiri or Ngāti Whātua must effectively be disregarded; and
• 'bottom line' cases typically involved binary decisions between 'avoid' and enabling policies, which are completely different from the inherently polycentric assessment required for tikanga and mana whenua issues which involve multiple intersecting values and standards.

The Court endorsed the 'structured analysis' in Port Otago, within a tikanga analytical framework, as being of assistance in reconciling conflicting positions:^[16]

1. The appropriate balance must depend on the circumstances, considered against the values inherent in the tikanga ā-iwi of the affected mana whenua.
2. All relevant factors must be considered in the particular factual circumstances, including assessing whose tikanga ā-iwi should prevail, or the extent they should prevail in the particular circumstances of the case.
3. The decision makers will consider the importance, in tikanga ā-iwi terms, of allowing the proposed activity, including the mana and mauri enhancing elements of the proposal, and conversely the importance and the intrinsic worth of the adversely affected mana whenua values.

The High Court emphasised the central importance of the cogency of pūkenga evidence:^[17]

The pūkenga must clearly specify the tikanga ā-iwi standard, its whakapapa (provenance or source) with supporting pūrākau, its significance, why and how it will be breached, the assumptions upon which that opinion is given, and opportunities, if any, for avoidance, mitigation or remediation. It is then the task of the Environment Court to evaluate whether, in light of that evidence, there will be an unavoidable or irremediable breach of tikanga Māori or tikanga ā-iwi standards with any corresponding adverse effects. If so, these must be strong factors to be weighed in determining whether consent can or should be granted, but always having regard also to the tikanga values and standards of other affected iwi and hapū, as well as the environmental benefits, in tikanga terms, of the proposed activity.

In dismissing the appeals, the High Court concluded that the Environment Court had not erred in addressing competing mana whenua views and interests and in interpreting policies in the AUP. However, the Court noted that the final Environment Court decision will need to articulate clearly how the avoid policy has been satisfied and the respective tikanga ā-iwi positions have been reconciled.^[18]

Addressing tikanga and Māori Cultural values in RMA processes

2024 featured a number of other cases in which RMA decision-makers addressed tikanga and Māori cultural values and grappled with the need to recognise and provide for different layers of mana whenua interests.

McCallum Bros Ltd v Auckland Council [2024] NZEnvC 75

This decision provides a useful summary of much of the key case law which has emerged in recent years.

McCallum Brothers Ltd had sought resource consents to undertake the continued extraction of sand at the Mangawhai-Pākiri embayment. The Environment Court confirmed the council-level decision to decline consent. In reaching its decision, the Environment Court traversed a number of key issues relevant to addressing tikanga and Māori cultural issues under the RMA.

First, the Court endorsed the three-step process for ascertaining the relevant tikanga/mātauranga set out in the Law Commission's report He Poutama and provided further guidance:^[19]

• The three steps are to identify:
  • the tikanga concepts that are engaged by the factual situation;
  • any relevant kōrero tuku iho and related mātauranga; and
  • any similar situations that have occurred within the iwi, hapū or whānau.
• In doing so, decision-makers should avoid a surface-level assessment and instead undertake a deeper dive into tikanga. Tikanga should be considered in context and in a connected manner (ie, taking one strand of evidence from one witness and making a conclusive finding should be avoided). The specific nature of any contests between mana whenua and any relationships affected need only be determined if it is necessary for a resource management purpose.

Second, the Court adopted an overview of the guidance that the courts have given about the approach to considering and weighing mana whenua evidence, including that:^[20]

• there can be more than one tangata whenua group in a particular area and varying layers of interests;
• where a particular tangata whenua group states that a specific outcome is required to meet the Part 2 directions in accordance with tikanga Māori, RMA decision makers must meaningfully respond to those claims; and
• decision-makers are entitled to, and must, assess the credibility and reliability of evidence for tangata whenua using the well settled 'rule of reason' approach.

The Court found that the relationship that Te Uri o Hau has with the embayment is different to that of Ngāti Manuhiri, and this was reflected in the different effects experienced and Ngāti Manuhiri's opposition to the sand mining. The Court rejected the suggestion that the refusal by some members of Ngāti Manuhiri to engage with the applicant impacted the credibility of their opposition.

In testing the relevant evidence, the Court reiterated that metaphysical effects are direct effects to be considered under the RMA. While biophysical effects are not required to establish metaphysical effects, metaphysical effects are not a 'trump card', those effects must be established, again adopting the 'rule of reason' approach.^[21]

Finally, the Court made a number of other points in relation to Te Tiriti o Waitangi/ the Treaty of Waitangi, affirming that:^[22]

• sections 6(e), 7(a) and 8 are strong directions, which must be borne in mind at every stage of the planning context;
• the principles of Te Tiriti, while they are not binding, may be very persuasive;
• balancing public interests and obligations to mana whenua cannot mean balancing away the principles of Te Tiriti; and
• in some contexts, active protection may require preferential treatment of Māori interests, but it does not act as a general veto over other interests.

Overall, the Court concluded that granting consent would adversely affect the ability for Ngāti Manuhiri to exercise kaitiakitanga and have an ongoing significant impact on the depleted mauri of the wider embayment, Ngāti Manuhiri themselves, and the taonga species identified. The Court held that these were not effects which could be avoided, mitigated or remedied.

Grenadier Ltd v Manawatū-Whanganui Regional Council [2024] NZEnvC 183

Te Iwi o Ngāti Tukorehe Trust v Horowhenua District Council [2024] NZHC 2083

These decisions both relate to a proposed golf course on privately owned farmland in Horowhenua which it was submitted would damage Tirotirowhetū, a significant cultural site for Ngāti Tukorehe. Another mana whenua group, Ngāti Kikopiri supported the proposal. These cases similarly demonstrate the way in which layers of interconnected mana whenua interests and cultural effects reflect the complexity of how communities operate.

The proposal required resource consents from Horowhenua District Council (HDC) and Manawatū-Whanganui Regional Council (Horizons). The HDC land use consents were processed on a non-notified basis and granted, whilst the Horizons consents were publicly notified, and the consents for vegetation clearance, land disturbance and earthworks activities were declined (although consents for other activities were granted).

Te Iwi o Ngāti Tukorehe Trust judicially reviewed HDC's non-notification decision on the basis that HDC failed to consider Ngāti Tukorehe as an 'affected person', failed to consider cultural effects that were at least minor and considered an irrelevant matter relating to the boundaries of the Coastal Outstanding Natural Features and Landscape (ONFL) and Natural Character Area in the District Plan. All three grounds were unsuccessful.

The High Court found that the council officer processing the application had adequate information when assessing who was an 'affected person'. In particular, the Court confirmed that the Council was entitled to rely on its own knowledge that Ngāti Kikopiri were mana whenua of the subject site and that the District Plan did not record any relevant sites of cultural significance. The Court considered that the Council had not "taken the AEE at face value" because the Council sought additional information, and there was nothing to suggest the information provided in the AEE was inaccurate.^[23]

Regarding whether HDC should have been aware of Ngāti Tukorehe's interest in the site, the Court rejected a submission that HDC should have been alerted to it by the memorandum of partnership or resource agreement between Ngāti Tukorehe and HDC because the site was not clearly identified and these documents are not planning documents.^[24] The Court also noted Ngāti Tukorehe is an affiliate of Ngāti Raukawa, who was consulted and that the council officer was entitled to assume that, if there had been a potential relevant cultural interest, Ngāti Raukawa would have identified that.^[25]

Grenadier Ltd v Manawatū-Whanganui Regional Council took a different path. The consent application was publicly notified and partially declined by the Regional Council. On appeal, Ngāti Tukorehe submitted the consents should not be granted at all because to do so would not recognise and provide for Ngāti Tukorehe's relationship with Tirotirowhetū.

The Environment Court accepted that Ngāti Tukorehe have a deeply-held cultural responsibility for the site, and acknowledged Ngāti Tukorehe's belief that this required the consent be declined. The Court also accepted the Ngāti Kikopiri held an opposing belief.^[26] Similar to McCallum Bros Ltd v Auckland Council, this demonstrates the "mosaic of overlapping and interconnected [mana whenua] interests" and the Environment Court's acknowledgment that these different interests can lead to different views on a resource consent application.^[27]

Overall, the Environment Court determined that the cultural interests on the site were best protected by consents being granted, on the basis that the "(…) proposal will ensure that a significant area of Tirotirowhetū is protected from activity. That is not the case if the consents are not granted, given the One Plan enables a range of permitted and controlled activities which would allow significant human and mechanical activity."^[28] In reaching this conclusion, the Court addressed the differing mana whenua perspectives, acknowledged the "(…) tension in outcomes sought", and noted that those matters had been carefully considered in arriving at the Court's decision.^[29]

Connor-Kingi v Whangārei District Council [2024] NZEnvC 351

This Environment Court decision – "one of the clearest cases we have seen where consent should be refused"^[30] – is a stark reminder to consent authorities of the importance of considering and consulting on sites of significance to Māori, particularly with mana whenua, when rezoning land. The decision was an appeal against the decision of Whangārei District Council (via an independent commissioner) to grant consent for a 93-lot residential subdivision on part of Onoke block associated with a pā site, and includes areas of wāhi tapu to the Ngāti Kahu o Torongare hapū. The land had been rezoned as residential in 2018.^[31]

The Court found that the commissioner's decision failed to adequately consider the site's historical and cultural significance, the lack of consultation with Ngāti Kahu o Torongare on the plan changes, the section 27B memorial^[32] on the record of title, earlier undertakings from the Council on plan changes, and a previous Environment Court decision on the same piece of land. The Environment Court unanimously agreed the Commissioner's determination could not be relied on for the appeal.^[33]

The Court found that:

1. the rezoning of a site cannot overrule the application of objectives, policies and rules of the plan – which include several policies about areas of significance to Māori and historic heritage;^[34]
2. allowing consent would make it difficult for the Waitangi Tribunal to recommend transfer of this memorialised land in full or partial resolution of any future claim, and this site was one of few that was available for that purpose;^[35]
3. the 'consultation' (which was simply a letter about the plan change, without specifying the areas that would be rezoned) on the plan change rezoning in 2018 did not comply with both the Council's 2004 undertaking to consult tangata whenua on land use changes, and the Environment Court's 1996 decision identifying the site as a site of significance,^[36] and was a breach of the Council's consultation obligations under section 6(e), and Schedule 1, clause 3 of the RMA;^[37] and
4. the removal of the pūriri trees, which the hapū considered tapu, would be contrary to Part 2 of the RMA.^[38] The applicant's ecology evidence did not assess mātauranga Māori values, despite EIANZ guidelines for ecological assessment specifying that investigations of mana whenua values and engagement with iwi and hapū should be a part of any ecological assessment.^[39]

On the second of these points, the Environment Court's decision did not directly address previous case law regarding section 27B memorials, such as Te Heu Heu & Tuwharetoa Māori Trust Board v Attorney-General [1999] 1 NZLR 98. An RMA-specific matter may distinguish Connor-Kingi from earlier cases, though, in that Objective TWP-03 in the Whāngarei District Plan provides that "In the implementation of this Plan no action will be taken which will knowingly exacerbate registered Treaty claims". The Court found that rezoning the land in the way proposed would be contrary to that objective.

Overall, the appeal was allowed and resource consents declined, providing a clear reminder of the importance of maintaining and protecting significant sites to Māori.

In February 2025, the developer filed an appeal with the High Court from the Environment Court's decision preventing the land from being developed.

Waste Management NZ Ltd v Hauraki District Council [2024] NZEnvC 47

This decision relates to the proposed extension of an existing landfill, on Te Rae o te Papa, the tūpuna maunga and site of significance for Ngāti Hako. The application was declined at the council-level and Waste Management NZ appealed. One of the key issues was whether the adverse cultural effects on Ngāti Hako could be adequately mitigated.

Ngāti Hako strongly opposed the extension of the landfill and the consistent position of Ngāti Hako witnesses was that there is no mitigation package that would enable them to agree to a further extension of landfilling beyond what had already been agreed.

The Court identified that accepting Ngāti Hako's position without a careful evaluation of the package proposed by WMNZ would effectively grant Ngāti Hako a veto not provided for in the RMA.^[40]

In assessing the effects on Ngāti Hako, the Court adopted the 'rule of reason' approach.^[41] The Court held that, in consideration of the effects of the proposal, and in light of the mitigation proposed, the mitigation package (nor any other likely mitigation package) would not avoid, remedy or mitigate the adverse effects on Ngāti Hako.^[42] Overall, the Court held that the proposal does not recognise and provide for Ngāti Hako's relationship with their ancestral lands and other taonga, contrary to section 6(e) of the RMA, and would prevent them from exercising kaitiakitanga in regards to Rae o te Papa such that the proposal would not have particular regard to section 7(a) of the RMA. Accordingly, the appeal was dismissed.

Marine and Coastal Area (Takutai Moana) Act 2011

2024 was also a significant year for developments in relation to the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA).

In September 2024, the Government introduced the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill. This Amendment Bill was foreshadowed in the coalition agreement between the National Party and the New Zealand First Party, under which those parties committed to amend section 58 of MACA "to make clear Parliament's original intent, in light of the judgment of the Court of Appeal in Whakatōhea".^[43]

Shortly after the Bill was introduced, in December 2024, the Supreme Court released its first Whakatōhea decision,^[44] which overturned aspects of the Court of Appeal's decision. While the Government originally intended to enact the Amendment Bill by the end of 2024, it has now put the Bill on hold while it reviews the implications of the Supreme Court decision.

As well as this, there have been numerous hearings and decisions to progress applications under MACA in various parts of the country. Further hearings have also been set down, right through to 2028.

Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka & Ors [2024] NZSC 164

The Supreme Court released the first of two decisions in relation to Whakatōhea in December 2024. This first decision overturns, in part, the Court of Appeal decision, in relation to the test for customary marine title under section 58 of MACA. The second decision will address other issues under appeal, including fact-specific issues arising from the clarified test and in respect of protected customary rights.

In order to understand the Supreme Court decision, it is necessary to briefly recap the earlier Court of Appeal decision.

The Court of Appeal decision was significant in that it was the first substantive appeal to the Court of Appeal under MACA. 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 (first limb) and has "exclusively used and occupied" that area from 1840 to the present day "without substantial interruption" (second limb). In summary, the Supreme Court's interpretation of the first limb of the section 58 test (i.e. that the group holds the area in accordance with tikanga) is similar to that of the Court of Appeal. However, the Supreme Court took a different approach in respect to the second limb.

In respect to the second limb, the Court of Appeal "found it exceptionally difficult to reconcile" the test with the purpose of the Act.^[45] The majority considered that on a literal interpretation, there would only be a few areas where the test for customary marine title could be satisfied, and that this would not recognise and promote customary interests, and rather MACA would in many cases extinguish those interests.

The majority found that the second limb requires the applicant group to demonstrate that, as at 1840, the group used and occupied the area and had sufficient control over the area to exclude others. Post-1840, the group's use and occupation must not have been substantially interrupted as matter of tikanga or by "lawful" activities carried on in the area.^[46]

As noted above, the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill was introduced in September 2024 to amend MACA and to essentially overturn the Court of Appeal's interpretation of section 58.

This provides the background to the Supreme Court's decision, which was released in December 2024. In summary, the Supreme Court overturned, in part, the Court of Appeal decision in relation to section 58. The Supreme Court found that:

• "exclusive use and occupation" from "1840 to the present day" requires a sense of control (rather than residence and literal exclusion of all others) and continuity;^[47] and
• the Court of Appeal erred in its conclusion that only lawful interferences, expressly authorised by statute, were capable of substantially interrupting exclusive use and occupation.^[48]

Specifically, in relation to the interpretation of "substantial interruption", the Supreme Court considered that the majority of the Court of Appeal took an unduly narrow approach, which did not "transparently confront the reconciliation task mandated by the Act".^[49] Instead, the Supreme Court favoured a holistic approach to the test that is informed by tikanga.

In arriving at this conclusion, the Court emphasised what it described as the reconciliation purpose of the legislation: "the text and legislative history of MACA makes it clear its purpose is to recognise and reconcile competing interests in marine and coastal areas".^[50] The Court identified four key premises that underpin the Act. These are:

1. the removal of Crown ownership in the common marine and coastal area;
2. the revival of Māori customary interests which had been extinguished by the Foreshore and Seabed Act 2004;
3. the protection of vested property rights and expressly authorised activities in the common marine and coastal area; and
4. the protection of expectations as to the public's access to and activities in the common marine and coastal area.

The Court found that there are ongoing tensions between these premises and that MACA therefore seeks to reconcile these competing interests. The Act's test for recognition of customary marine title under s 58 is one example of how the Act aims to reconcile these tensions.

The Supreme Court decision provides further guidance on the test for customary marine title under MACA. The implications of the Supreme Court decision are still to be worked through in the lower courts. However, the decision may mean that the test for customary marine title is more difficult for some applicant groups to meet, particularly in relation to the second limb of the test.

Other hearings and decisions from 2024

There were also several other MACA hearings and decisions in 2024, including:

• In relation to Tokomaru Bay, the High Court released its substantive decision on 1 May 2024,^[51] in which it confirmed that the applicant groups had met the test for customary marine title and certain protected customary rights. Further hearings took place in 2024 regarding wāhi tapu and the form of orders. The High Court has recently released a further decision^[52] that confirms final orders (however, these orders cannot be sealed until appeals to the Court of Appeal have been disposed of). The High Court's final orders include conditions to protect particular wāhi tapu sites that the Court found to have met the test for recognition and protection under the Act.
• In relation to Southern Wairarapa, the High Court released its substantive decision on 17 April 2024,^[53] in which it also confirmed that the applicant groups had met the test for customary marine title and certain protected customary rights. Further hearings took place in 2024 regarding wāhi tapu and the form of orders. The High Court has recently released a decision in relation to wāhi tapu in which it confirmed that several sites are capable of recognition and protection as wāhi tapu.^[54] A further hearing was held in April-May 2025 to confirm final orders. Similarly to Tokomaru Bay, final orders will not be able to be sealed until appeals to the Court of Appeal have been disposed of.
• In relation to Northern Wairarapa, a hearing was held in February 2024 and the High Court released an interim decision on 12 December 2024. The final decision is now awaited and further hearings are set down later this year regarding wāhi tapu and the form of any orders.
• In relation to Aotea Harbour, the High Court released its substantive decision on 11 December 2024,^[55] confirming that the applicant groups had met the test for customary marine title and certain protected customary rights. A further hearing is scheduled to take place later this year regarding wāhi tapu and the form of orders.
• In relation to Whangārei Harbour and Coast, two hearings took place in 2024 and the High Court's decision is yet to be released, with further hearing time allocated in 2025 regarding wāhi tapu and the form of any orders.
• In relation to Kapiti-Manawatū, a hearing took place in 2024 and the High Court's decision is yet to be released, with further hearing time allocated in 2025 regarding wāhi tapu and the form of any orders.
• In relation to Whakatōhea, as well as the Supreme Court decision referred to above, the High Court also released two decisions as a consequence of rehearings directed in the Court of Appeal decision.^[56]

Some of the decisions and hearings referred to above will be affected by the Amendment Bill, if enacted in its current form. The Select Committee version of the Bill requires that any judgments confirming customary marine title that are delivered after 25 July 2024 (being the date on which the Government announced its intention to amend the legislation) and which are based on the "old law" (ie the pre-amendment customary marine title test) must be taken to have no legal effect. Some of the decisions and hearings referred to above would be affected by this and it seems that the relevant applications would need to be reheard under the new customary marine title provisions, if the Amendment Bill is enacted.

In addition to the hearings listed above, some other hearings that were originally scheduled to commence in 2024/2025 have been adjourned for the time being (including for Porirua-Wellington, Central Bay of Plenty and South Taranaki). Some of these adjournments are at least partly in response to the current uncertainty associated with the Amendment Bill. However, other hearings have been set down for various dates up to 2028 (including Ruapuke Island, Rongomaiwahine, Manaia Harbour, Whāingaroa, Mokau ki Runga, Ngāti Tara and Whangaroa (Te Whānau-a-Rataroa)).

Treaty settlement milestones

During 2024 the following settlement milestones were reached:

• the Whakatōhea Claims Settlement Act 2024 was enacted on 4 June 2024;
• Te Korowai o Wainuiārua Claims Settlement Bill was reported from select committee on 1 October 2024 (and was subsequently enacted on 12 March 2025);
• the Ngāti Tara Tokanui Claims Settlement Bill reached second reading on 28 May 2024;
• the Ngāti Hei Claims Settlement Bill reached second reading on 9 April 2024;
• the Tauranga Moana Iwi Collective Redress and Ngā Hapū o Ngāti Ranginui Claims Settlement Bill was divided into the Tauranga Moana Iwi Collective Redress Bill and the Ngā Hapū o Ngāti Ranginui Claims Settlement Bill on 3 April 2024, and referred to a select committee; and
• on 21 November 2024 Ngāti Hāua Iwi Trust and the Crown initialled the Ngāti Hāua deed of settlement (the deed was subsequently signed on 29 March 2025).

Developments to watch for in 2025

There are a number of significant developments to watch out for in 2025, including:

• emerging practice under the FTAA;
• the development of a replacement for the RMA;
• the Supreme Court's decision in Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council;
• the progress of the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill.

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; (2023) March Māori LR; and (2024) March Māori LR.

This article was prepared by Francesca Dykes, Hinemoana Markham-Nicklin, Chelsea Easter, Cerridwen Bulow, Frances Wedde, 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] Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Transport Agency [2024] NZSC 26, [2024] 1 NZLR 241 (East-West Link) at [79].

[3] East-West Link at [80].

[4] RJ Davidson Family Trust v Marlborough District Council [2018] NZCA 316 (Davidson).

[5] At [106]-[107].

[6] Davidson at [75].

[7] Davidson at [75].

[8] East-West Link at [109].

[9] East-West Link at [101].

[10] East-West Link at [111].

[11] East West Link at [88].

[12] At [118].

[13] Māori interests in natural resource management: 2019 and (much of) 2020 in review (2020) October Māori LR 1.

[14] At [200]-[206].

[15] At [208]-[212].

[16] Te Rūnanga o Ngāti Whātua v Auckland Council [2024] NZHC 3794 at [212].

[17] At [214].

[18] At [215].

[19] At [162], [165], [168]-[170] and [284].

[20] At [164].

[21] At [85]-[86].

[22] At [311], [313] and [332]-[334].

[23] Te Iwi of Ngāti Tukorehe Trust v Horowhenua District Council [2024] NZHC 2083 at [97].

[24] Te Iwi of Ngāti Tukorehe Trust v Horowhenua District Council [2024] NZHC 2083 at [78]-[79].

[25] Te Iwi of Ngāti Tukorehe Trust v Horowhenua District Council [2024] NZHC 2083 at [83].

[26] Grenadier Ltd v Manawatū-Whanganui Regional Council [2024] NZEnvC 183 at [115] and [165].

[27] Grenadier Ltd v Manawatū-Whanganui Regional Council [2024] NZEnvC 183 at [114], see as identified at [127]-[129].

[28] Grenadier Ltd v Manawatū-Whanganui Regional Council [2024] NZEnvC 183 at [183].

[29] Grenadier Ltd v Manawatū-Whanganui Regional Council [2024] NZEnvC 183 at [115].

[30] Connor-Kingi v Whangārei District Council [2024] NZEnvC 351 at [169].

[31] At [133].

[32] Section 27B notations refer to the resumption power of the Waitangi Tribunal for the land. Section 27B of the State-Owned Enterprises Act 1986 provides for the return to Māori ownership of land transferred to or vested in a state-owned enterprise, where the Tribunal recommends it.

[33] Connor-Kingi v Whangārei District Council at [23].

[34] At [124].

[35] At [163] and [167].

[36] At [87].

[37] At [87].

[38] At [116].

[39] At [105].

[40] Watercare Services Ltd v Minhinnick [1998] NZLR 294, [1998] NZRMA 113 (CA).

[41] At [204]. See Ngāti Hokopu Ki Hokowhitu v Whakatane District Council (2002) 9 ELRNZ 111 (EnvC) and as endorsed in Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768 at [68] and [117].

[42] Waste Management NZ Ltd v Hauraki District Council [2024] NZEnvC 47 at [270] and [322].

[43] Coalition Agreement between the National Party and the New Zealand First Party, page 10, referring to Whakatōhea Kotahitanga Waka (Edwards) & Ors v Te Kāhui and Whakatōhea Māori Trust Board & Ors [2023] NZCA 504.

[44] Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka & Ors [2024] NZSC 164.

[45] Whakatōhea Kotahitanga Waka (Edwards) & Ors v Te Kāhui and Whakatōhea Māori Trust Board & Ors [2023] NZCA 504; [2023] 3 NZLR 252 at [416].

[46] Whakatōhea Kotahitanga Waka (Edwards) & Ors v Te Kāhui and Whakatōhea Māori Trust Board & Ors [2023] NZCA 504; [2023] 3 NZLR 252 at [434].

[47] Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka & Ors [2024] NZSC 164 at [134], [161], [222], and [224].

[48] Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka & Ors [2024] NZSC 164 at [199] and [225].

[49] Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka & Ors [2024] NZSC 164 at [209].

[50] Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka & Ors [2024] NZSC 164 at [212].

[51] Ngā Hapū o Tokomaru Ākau v Te Whānau a Ruataupare Ki Tokomaru [Reissued Redacted Version] [2024] NZHC 682.

[52] Ngā Hapū o Tokomaru Ākau v Te Whānau a Ruataupare Ki Tokomaru [Stage Two Hearing] [2025] NZHC 250.

[53] Re Ngāi Tūmapūhia-a-Rangi Hapū Inc [2024] NZHC 309.

[54] Re Ngāi Tūmapūhia-a-Rangi Hapū Inc (No. 2) [2025] NZHC 68.

[55] Papa & Ors [2024] NZHC 3610.

[56] Ngāti Patumoana and Ors [2024] NZHC 1435; Jones on behalf of Ririwhenua Hapū v Attorney-General [2024] NZHC 1373.