Friends & Community of Ngawha Inc v Minister of Corrections [2002] NZCA 322; (2003) 9 ELRNZ 67; [2003] NZRMA 272 (17 December 2002)

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Friends & Community of Ngawha Inc v Minister of Corrections [2002] NZCA 322 (17 December 2002); (2003) 9 ELRNZ 67; [2003] NZRMA 272

Last Updated: 14 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA216/02

	BETWEEN	FRIENDS & COMMUNITY OF NGAWHA INC
		First Appellant

	AND	RONALD WIHONGI AND RIANA WIHONGI
		Second Appellants

	AND	SHAYRON BEADLE
		Third Appellants

	AND	MINISTER OF CORRECTIONS
		Respondent

Hearing:	25 November 2002
Coram:	Blanchard J Tipping J McGrath J
Appearances:	P J Kapua and G A Rangi for Applicants P J Milne and J P Mooar for Respondent
Judgment:	17 December 2002

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1] This is an application for special leave to appeal under s144 of the Summary Proceedings Act 1957 in its application, pursuant to s308 of the Resource Management Act 1991 (the Act), to a decision of the High Court under s299 of the Act.
[2] The Minister of Corrections required the Far North District Council, as territorial authority, to designate a site at Ngawha for a regional prison. Commissioners acting on behalf of the District Council recommended that the designation be accepted, subject to conditions. The Minister accepted that recommendation.
[3] The Minister applied to the Northland Regional Council for necessary resource consents. The Council declined that application.
[4] The Minister appealed to the Environment Court against the Council’s decision and the present applicants, Ms Beadle and Mr & Mrs Wihongi, appealed to that Court against the Minister’s decision confirming the designation requirement.
[5] After an extended hearing the Environment Court delivered a decision on 8 April 2002 in which it allowed the Minister’s appeal and granted the resource consents and disallowed the respondents’ appeal and confirmed the requirement for designation of the site, in each case upon certain conditions.
[6] The present applicants appealed to the High Court on 30 April. They also applied to the Environment Court for an order staying its decision pending determination of the High Court appeal. The stay application was declined by the Environment Court on 6 June.
[7] Wild J delivered the decision of the High Court on 20 June. None of the five grounds of appeal succeeded and the appeal was dismissed.
[8] The appellants sought leave to appeal to this Court. On 18 September Wild J refused leave. The present application to this Court for special leave was filed on 9 October. We were informed at the hearing on 25 November that substantial progress has been made on the site works, including wick drains, and that the diversion of the stream has been completed. The applicants seek the opportunity of persuading this Court to overturn the decision of the Environment Court and refer back to it the consideration of certain matters.
[9] In essence, although this Court was asked for leave in relation to four particular questions (a fifth, rather ancillary, matter being abandoned at the hearing), the essential question related to whether the Environment Court had failed to give proper consideration in accordance with the directions contained in the Act to the beliefs of certain Maori (including the members of the applicant society and the individual applicants) concerning the taniwha Takauere which is said to dwell at the site or in its vicinity. A question was also raised concerning whether the Environment Court had erred in law in preferring the kaitiakitanga (guardianship) of one group of kaitiaki (Ngati Rangi) over another group of kaitiaki (Te Uri o Hua), with the latter of which the applicants were associated. Ms Kapua confirmed to us that the alleged failure to give proper recognition to Te Uri o Hua related to the beliefs concerning the taniwha.
[10] The Act defines “environment” in s2 as follows:

environment includes—

(a) Ecosystems and their constituent parts, including people and communities; and

(b) All natural and physical resources; and

(c) Amenity values; and

(d) The social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) of this definition or which are affected by those matters:

The Act also contains the following statement of purpose and relevant directions:

5 Purpose

(1) The purpose of this Act is to promote the sustainable management of natural and physical resources.

(2) In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while—

(a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and

(b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and

(c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment.

6 Matters of national importance

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:

...

(e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.

7 Other matters

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to—

(a) Kaitiakitanga:

...

8 Treaty of Waitangi

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).

[11] There was a considerable division of opinion even amongst Maori who believe in Takauere concerning the possible effect of the construction of the prison. It is noteworthy that the evidence is expressed in terms of a possible effect on the taniwha rather than in terms of the spiritual consequences of the erection of the prison for those Maori who believe in the presence of the taniwha at the site.
[12] As it is quite apparent that the way in which the Environment Court went about its consideration of questions relating to Takauere was influenced by the nature of the evidence and the way in which arguments were placed before it by counsel then representing the applicants, it is appropriate that we give a brief outline of that portion of its judgment. The Court recorded that in the appeal in respect of the designation the Wihongis had claimed that the prison would interfere with their relationship with the taniwha and that the proposed wick drains would be a gross intrusion upon the taniwha’s domain. The Regional Council’s commissioners had made a finding, in refusing the Minister’s resource consent application, that the whole area, including waterways, was within the domain of the taniwha and that the proposed earth and stream works were a desecration.
[13] Some witnesses in the Environment Court said that the wick drains would interfere with Takauere and some said that they would not have any effect on the taniwha. One of the latter witnesses, for example, said that the taniwha would simply find other passageways and places in which to reside and that the prison and the taniwha could coexist.
[14] The Environment Court, reviewing the evidence, found that there were people who believed in the existence of Takauere although there were differences of detail among them about the taniwha’s nature and behaviour. But the Court said that what was clear to it was that the taniwha was not a human person nor a physical creature. “To describe it as a mythical, spiritual, symbolic and metaphysical being may be incomplete or inaccurate, but will suffice for the present purpose”. After referring to the New Zealand Bill of Rights Act 1990’s guarantees of freedom of thought, conscience, religion and belief and the right to manifest religion or belief, the Court said that it respected the rights of people who believe in the taniwha. But the purpose of the Act did not extend to protecting such beings:

Neither the statutory purpose, nor the text of [ss6(e), 7(a) and 8] indicates that those making decisions under the Act are to be influenced by claimed interference with pathways of mythical, spiritual, symbolic or metaphysical beings, or effects on the mythical, spiritual, symbolic or metaphysical qualities.

[15] The Court said that there was no reliable basis for deciding conflicting claims about the subject of the belief. The question of whether proposed earthworks would impede passages of the taniwha to the surface was not susceptible of proof nor of a judicial finding based on the evidence (later saying that disputes about a taniwha were simply not justiciable). The Court went on:

The flow in the stream will remain. None of the vents in the stream is to be blocked, the earthworks will not interfere with any known gas vents, and if any new vent is discovered, it is not intended to be blocked. The taniwha’s pathways are not physical passages that can be measured, and (at least on some accounts) the dimensions of the taniwha vary from time to time.

[16] The Court recorded that none of its members had been persuaded that, to whatever extent Takauere might exist, it would be affected in pathways to the surface or in any way at all by the proposed prison or any earthworks, stream works or other works or development for the prison. The Court said that the outcome was that it did not accept that the “claims” about the taniwha should influence its decision in the proceedings.
[17] The Court then proceeded to deal with the Maori relationship with “other” ancestral taonga and kaitiakitanga. Later in the judgment there was a section on “The law on the act of protection principle” in the course of which the Court made the important observation that active protection was not limited to physical and tangible resources but extended to spiritual and intrinsic values.
[18] Consistently with the findings it had made about pathways, the Court found that gas vents had been excluded from the site of development works and that the site contained no other taonga, nor would the works interfere with the geothermal system in any way.
[19] The central argument which the applicants would wish to advance in this Court is that the Environment Court did not have proper regard to the beliefs concerning the taniwha of those Maori whom they represent. They accept that those beliefs are not a natural or physical resource but say that, for the purposes of s5, the beliefs form part of a cultural and social wellbeing and that they are, in terms of the definition of “environment”, part of the social and cultural conditions which affect ecosystems and natural and physical resources. They say that the use and development of resources must be done consistently with Part II of the Act, including s6(e) which requires both recognition and provision for the relationship of Maori and their culture and traditions with their ancestral lands, water and taonga. The taniwha, or the belief in it, is said to be a taonga. Whilst it is accepted that the Environment Court recognised the beliefs, it is said to have made no provision, or inadequate provision, for them in its decision; that there was no compromise or balancing carried out by the Court in this respect so that the prison proposal cannot achieve the sustainable management of natural and physical resources in a way which protects the cultural wellbeing of Maori in accordance with s5.
[20] The Court is said to have erred in law in saying that those making decisions under the Act do not have to be influenced by the claimed interference with pathways of beings such as the taniwha or effects on their qualities, and in further saying that disputes about a taniwha are simply not justiciable.
[21] In the High Court, where the argument may not have been put in entirely the same way as it has been outlined to us, Wild J did not accept that the Environment Court had erred in these respects. He agreed that if the Court had excluded taniwha from its s6(e) assessment it would have misapplied that provision. But he noted that the Court had regarded itself as being bound by the decision of the Full Court in Bleakley v Environment Risk Management Authority (High Court, Wellington, AP177/00, 2 May 2001, McGechan and Goddard JJ) and had applied that decision. (The Environment Court in fact quoted a statement by Goddard J in Bleakley that active protection under the Act may, in some cases, require decisions to be made according to tenets of Maori spiritual beliefs, where those are significant.) Wild J said that the Environment Court had made a factual finding that Takauere would not be affected by the prison or the earth, stream and other works necessary for its development. The Judge said that this was a factual finding which was open to the Environment Court on the evidence.
[22] Wild J considered that the concepts of effect on Takauere and the effect on Maori and their beliefs were inextricably bound up. He said that the Court had not accepted that the development would affect Takauere “and therefore did not accept that it would affect the beliefs some Maori have in Takauere”. Consequently, in terms of s6(e), there was, the High Court held, no error of law.
[23] The essential submission for the applicants in this Court would be that because the Environment Court made a finding of law that claims about the taniwha should not influence its decision, it thereby precluded itself from recognising and providing for the taniwha when undertaking at s6(e) assessment. It became clear, however, in the course of Ms Kapua’s well presented submissions that what it was said that the Court precluded itself from doing was, rather, from providing for the beliefs about the taniwha. It was, rightly in our view, not suggested in this Court that the Environment Court ought to have made provision for the metaphysical being itself. The provisions of the Act do not impose a requirement of that kind.
[24] But, although the Environment Court understandably tended to express its decision in terms of the way in which the evidence and argument concerning this issue was presented to it, namely in terms of the effect on the taniwha rather than, more correctly, in terms of the effect on the relationship of Maori with that taonga, it emerges from a reading of the judgment as a whole that the Court was concerned to recognise and see that accommodation had been made for those beliefs and that, if it had directly addressed that question, its answer would inevitably have been the same. Indeed, we share Wild J’s view that in reality that is what the Court was in fact doing although using language which responded to the way in which the issue had been argued. (In fact it was still being put in that way in the Notice of Appeal filed in the High Court before Ms Kapua was instructed.) The Court, for example, made a determination of fact that the prison and other works would not affect the pathways. The Court appears to have been of the view that the beliefs of the applicants about the taniwha were therefore being appropriately provided for by the way in which the development had been designed. The Court could hardly have been expected to conclude that although the taniwha’s pathways were not affected – there being no gas vents within the site – it was nevertheless necessary to make further provision for beliefs to the contrary, especially when those beliefs were not shared by other Maori witnesses.
[25] The Court’s observation that disputes about a taniwha are not justiciable also appears to have been a response to the particular arguments it heard. It does not appear to have been saying that issues about beliefs of Maori are not relevant or not to be taken into account under the Act.
[26] Accordingly, were this Court to grant leave in order to enable full argument on the question of law, the result of the further appeal would not lead to referral of the issue back to the Environment Court.
[27] As we have indicated, the other proposed questions are peripheral. One related to a passing comment by Wild J that, assuming the relationship of Maori to the taniwha was compromised, that did not point to an adverse effect on the environment. (Ms Kapua accepted that the Judge probably meant to say “did not necessarily point to an adverse effect”.) As an isolated remark, that statement may possibly be questioned, but it does not appear to have formed a basis for any conclusion reached by the Judge.
[28] A further matter was whether the High Court had erred in finding that the Treaty of Waitangi principle of active protection did not demand consideration of alternatives. But all Wild J actually said, correctly in our view, was that any error of the Environment Court in this respect was immaterial because the Court had in fact considered the adequacy of alternative sites and methods. There is no arguable error of law by the High Court in this respect.
[29] Lastly, there is the matter of the recognition of kaitiakitanga. The proposed argument was that the Environment Court had been required to consider which group or groups of Maori had kaitiakitanga in respect of a given taonga (accordingly to tikanga) and then to have regard to each recognised kaitiakitanga; that it was a breach of s8 not to proceed in this way. In particular, it was submitted that the Environment Court was not entitled to prefer the kaitiakitanga of Ngati Rangi over that of Te Uri o Hua and that a ranking approach is not required nor sanctioned by the Act – that the weight of the evidence presented about kaitiakitanga should have been determined by looking to the content of the knowledge and recollections of witnesses, rather than as a “representative issue.”
[30] Although the Environment Court did make a finding that Ngati Rangi was the primary kaitiakitanga in respect of the site, it also found that Te Uri o Hua had a claim to be kaitiaki in respect of a general area including that block, and it found that the design of the proposed works and the designation “have a particular regard to kaitiakitanga”, i.e. of both groups. Our reading of the relevant portion of the judgment as a whole does not lead us to the view that the approach taken to kaitiakitanga – almost inevitable in view of the competitive way in which the proponents themselves chose to put the matter before the Environment Court – made any difference to the Court’s conclusions. It is not therefore appropriate to grant leave on this issue.
[31] For these reasons leave to appeal is refused. If any issue arises as to costs it can be the subject of memoranda.

Solicitors:
Tamatekapua Law, Auckland for Applicants
Simpson Grierson, Auckland for Respondent