Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2021] NZCA 452 (9 September 2021)

Last Updated: 16 September 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA48/2021 [2021] NZCA 452

	BETWEEN	TE RŪNANGA O NGĀTI AWA Appellant
	AND	BAY OF PLENTY REGIONAL COUNCIL First Respondent CRESWELL NZ LIMITED Second Respondent

CA49/2021
	BETWEEN	SUSTAINABLE OTAKIRI INCORPORATED Appellant
	AND	WHAKATĀNE DISTRICT COUNCIL First Respondent CRESWELL NZ LIMITED Second Respondent
CA60/2021
	BETWEEN	NGĀTI PIKIAO ENVIRONMENTAL SOCIETY INCORPORATED Appellant
	AND	BAY OF PLENTY REGIONAL COUNCIL First Respondent CRESWELL NZ LIMITED Second Respondent

CA61/2021
	BETWEEN	TE RŪNANGA O NGĀI TE RANGI IWI TRUST Appellant
	AND	BAY OF PLENTY REGIONAL COUNCIL First Respondent CRESWELL NZ LIMITED Second Respondent

Court:	Clifford and Courtney JJ
Counsel:	H K Irwin-Easthope and K J Tarawhiti for Appellant in CA48/2021 J D K Gardner-Hopkins for Appellant in CA49/2021 R B Enright and R G Haazen for Appellant in CA60/2021 J M Pou for Appellant in CA61/2021 M H Hill for First Respondent in CA48/2021, CA60/2021 and CA61/2021 A M B Green and M S Jones for First Respondent in CA49/2021 J B M Smith QC and D G Randal for Second Respondent in CA48/2021, CA49/2021, CA60/2021 and CA61/2021
Judgment: (On the papers)	9 September 2021 at 11.30 am

JUDGMENT OF THE COURT

1. The applications by Ngāti Awa and Sustainable Otakiri Inc for leave to amend the first approved question of law in [2021] NZCA 354 are granted.
2. The first approved question of law is set aside and substituted for the following:

Did the High Court err in finding that the Environment Court was correct to conclude that the effects on the environment of end use (i.e. export and use of plastic bottles) were beyond the scope of consideration in relation to the second respondent’s application for consents to take water, and those relating to land use activities?

100. The applications for leave to amend the questions of law are otherwise declined.

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REASONS OF THE COURT

(Given by Clifford J)

• [1] This judgment deals with applications brought by the appellants under r 34 of the Court of Appeal (Civil) Rules 2005 (the Rules) for leave to amend their grounds of appeal.

Background

• [2] Te Rūnanga o Ngāti Awa, Sustainable Otakiri Inc, Ngāti Pikiao Environmental Society Inc, and Te Rūnanga o Ngāi Te Rangi Iwi Trust brought applications for leave to appeal a judgment of the High Court.^[1] That judgment upheld the Environment Court’s decision to dismiss the parties’ appeals against the granting of resource consents to the second respondent, Creswell NZ Ltd, by the Bay of Plenty Regional Council and the Whakatāne District Council.^[2]
• [3] On 29 July 2021, this Court delivered its judgment granting leave to the appellants on five questions of law.^[3] Those questions were:^[4]

(1) Did the High Court err in finding that the Environment Court was correct to conclude that the effects on the environment of using plastic bottles were beyond the scope of consideration in relation to the second respondent’s application for consents to take water, and those relating to land use activities?

(2) Did the High Court err in finding that the Environment Court did not need to seek further evidence, or decline the second respondent’s application for consent, in circumstances where the Court had evidence as to the scale of the bottling operation but no evidence as to the scale or adverse effects of plastic bottles being discarded?

(3) Did the High Court err in finding that the Environment Court did not need to have recourse to pt 2 of the Resource Management Act 1991 and, in particular (i) that the relevant planning instruments provided adequate coverage of the provisions of pt 2, and (ii) that an assessment of sustainability by itself was sufficient to address relevant cultural effects, so that no further reference to pt 2 was needed in that context.

(4) Did the High Court err in finding that the Environment Court correctly determined that the activity status of the second respondent’s proposal was a discretionary “rural processing activity”, rather than a non‑complying “industrial activity” including “manufacturing”, under the terms of the Whakatane District Plan?

(5) Did the High Court err in finding that the Environment Court correctly classified the respondent’s proposal as an expansion of an existing use of land, and therefore a discretionary activity under s 127 of the Resource Management Act 1991, rather than as a new activity falling for consideration as a non-complying activity under s 88 of that Act?

• [4] We also invited the appellants to confer, and if any issues arose in our reformulation of the proposed questions for which leave was sought (for which there was considerable overlap), leave was reserved.^[5]
• [5] On 23 August 2021, this Court received a joint memorandum of counsel for Ngāti Awa, Ngāi Te Rangi and Ngāti Pikiao (supported by Sustainable Otakiri) which proposed amendments to the formulation of the first question, and also proposed a new question of law to be added to the appeal. In a joint memorandum filed in response, each of the respondents indicated that they did not take issue with the proposal to amend the first question, but sought clarification as to its scope; in particular, whether it included consideration of the alleged tikanga effects of exporting water. In terms of the proposed new question, the respondents opposed its addition to the appeal.
• [6] Our response to those proposed amendments was made difficult by the COVID-19 level 4 lockdown, and was time-pressured: the appellants’ notices of appeal were due to be submitted to this Court by 26 August 2021, that is, within 20 working days of the judgment granting leave.^[6] As such we were not able to respond before the appellants filed their notices of appeal, in time, on 25 August 2021 on the basis of the approved questions recorded in the leave judgment. Accompanying the appellants’ notices of appeal was a joint memorandum seeking leave to amend their grounds of appeal under r 34 of the Rules.

This application

• [7] The appellants seek two amendments to the approved questions of law:

(1) First, that question one, for which leave was granted to Ngāti Awa and Sustainable Otakiri, should be reformulated as follows (with the changes italicised):

Did the High Court err in finding that the Environment Court was correct to conclude that the effects on the environment of end use (i.e. export and use of plastic bottles) were beyond the scope of consideration in relation to the second respondent’s application for consents to take water, and those relating to land use activities?

(2) Secondly, that the following new question of law should be added to the appeal, and if so, that leave to appeal should be granted on that question to Ngāti Awa, Ngāti Pikiao and Ngāi Te Rangi:

Did the High Court err in finding that the Environment Court was correct to exclude consideration of the cultural effects of export as an end use of the water take?

• [8] We discuss each amendment in turn.

Submissions

• [9] The appellants say the amendment to question one is necessary to clarify that the export of water, outside the rohe of Ngāti Awa and overseas, forms part of the question; and that it is not limited to the effects of using plastic bottles. They consider the issue of the export of water is an implied part of the question, but this amendment obviates the need for later arguments about scope.
• [10] In terms of the proposed new question, the appellants say it raises an issue of general or public importance. They submit that the Environment Court’s ability to consider tikanga and cultural effects is a question of approach (and law), and a not a challenge to the correctness of the preferred evidence. They contrast an analysis of whether the Environment Court erred in its approach to tikanga by finding there was no jurisdiction to consider end use as relevant to the regional resource consents (which would involve a question of law), against the Environment Court’s decision not to rely on the evidence of the Ngāti Awa iwi authority as the arbiter of its own tikanga, or its conflation of western science expert evidence relating to physical effects with the tikanga effects (both of which would not involve questions of law).
• [11] For their part, the respondents do not take issue with the proposed changes to question one. However, they do not agree with the implication drawn by the appellants that the alleged tikanga effects of exporting water (as opposed to exporting plastic bottles) forms part of that question. They say that is a matter that has already been decided on the evidence by the Environment Court; that is, that the export of water had no adverse tikanga effects. If the appellants’ reading of question one was correct, then there would be no need for the proposed new question to be included, which covers substantially the same ground.
• [12] In terms of the proposed new question, the respondents oppose it being added to the appeal for the following reasons:

(1) First, they say it incorrectly posits that the Environment Court excluded consideration of the tikanga effects of exporting water in its decision, when the High Court found the Environment Court majority squarely considered those effects.^[7]

(2) Secondly, they say it confuses the factual findings made by the Environment Court about cultural effects with whether it had scope to consider those effects. That distinction, it says, was clear in the High Court when it held the Environment Court’s findings as to jurisdiction was not material to its decision, given its factual finding that the cultural effects applied to water irrespective of where it was used.^[8] Moreover, if the appellants wanted to revisit that issue, it would have needed to challenge the High Court’s findings as to materiality which, in any event, is not an issue of general of public importance to be decided by this Court.

(3) Thirdly, there is a risk the new question will require an assessment of the evidentiary findings on the tikanga effects, which this Court in its leave judgment expressly declined to consider.^[9]

(4) Finally, the respondents oppose leave being granted on the new question to Ngāti Pikiao and Ngāi Te Rangi because their original applications for leave to appeal did not raise the issue of cultural effects of export as an end use of the consent. Ngāi Te Rangi merely focused on errors of tikanga and the Environment Court’s alleged error in preferring the expert evidence of Mr Eruera (called by Creswell NZ Ltd) rather than the experts called by Ngāti Awa. Moreover, their applications focused more on the matters raised in the third approved question for which leave was granted, namely, whether recourse to pt 2 of the Resource Management Act 1991 was required.

Analysis

• [13] We consider that the proposed amendment to question one is appropriate. We accordingly grant leave to Ngāti Awa and Sustainable Otakiri to amend their grounds of appeal to that extent.
• [14] However, this Court’s focus in setting question one was, in essence, whether the effect of the export and use (outside New Zealand) of some 1.35 billion plastic bottles per year should have, as a matter of law, fallen for consideration in determining whether to grant the water consent. It was not to embark on an enquiry on the tikanga effects.
• [15] We accept that there is a distinction between questions of jurisdiction and the correctness of the factual findings, however in these circumstances we do not see how this Court could realistically engage in that enquiry without implicitly challenging the evidentiary findings made by the Environment Court. The key finding here is:^[10]

[156] In assessing the evidence on the primary issue of the adverse metaphysical effects resulting from the asserted loss of mauri from the water that is bottled and exported, we have accepted Mr Eruera’s evidence that there is no loss of mauri from the water as the water remains within the broad global concept of the water cycle and is returned to Papatūānuku irrespective of where it is used. In doing so we respect the honestly-held beliefs of Dr Mason and Mr Merito that for some of the people of Ngāti Awa the export of water in bottle form results in loss of the mauri of the water and that this cannot be restored. There is inherent difficulty in assessing the extent of metaphysical beliefs. In our overall consideration of the evidence on this point, we find that any adverse effect that may be perceived by members of Ngāti Awa has not been shown to be of a nature and scale that warrants refusing consent on this basis alone.

• [16] We acknowledge that the Environment Court determined that the effects of export were beyond the scope of its jurisdiction.^[11] Notwithstanding that, the finding they have made as a matter of fact applies irrespective of the issue of export. We therefore agree with Gault J in the High Court when he said:^[12]

[118] Even so, I consider that the [Environment Court] majority’s conclusions in relation to the cultural effects of exporting the water were justified based on its factual findings, irrespective of its conclusion that the effects of export were beyond scope. I therefore consider that, irrespective of the majority’s end use conclusion in the Jurisdictional Overview, the majority did consider the cultural effects of export. Given the nature of the effects – metaphysical cultural effects on the iwi appellants – the majority was necessarily considering the effects in New Zealand. Further, the majority’s factual finding – that there is no loss of mauri from the water as the water remains within the broad global concept of the water cycle and is returned to Papatūānuku irrespective of where it is used – applies not only to exports but also to removal of water from the local area to other parts of New Zealand.

• [17] For the same reason, we cannot agree to the addition of the proposed new question to the appeal. We agree with the respondents that the question incorrectly assumes the Environment Court did not consider cultural effects of export as an end use. The issue of export was not material to their factual findings because of the nature of the tikanga evidence they preferred. Here we repeat Elias CJ’s observation in Takamore v Clarke:^[13]

[95] What constitutes Maori custom or tikanga in the particular case is a question of fact for expert evidence or for reference to the Maori Appellate Court in an appropriate case.^[14] A court asked to identify the content of custom by evidence is not engaged in the same process of interpretation or law‑creation, as is its responsibility in stating the common law. ...

• [18] In view of those observations, and the nature of the tikanga evidence preferred by the majority of the Environment Court, we do not consider it appropriate to add the proposed new question to the appeal.

Result

• [19] The applications by Ngāti Awa and Sustainable Otakiri Inc for leave to amend the first approved question of law in [2021] NZCA 354 are granted.
• [20] The first approved question of law is set aside and substituted for the following:

Did the High Court err in finding that the Environment Court was correct to conclude that the effects on the environment of end use (i.e. export and use of plastic bottles) were beyond the scope of consideration in relation to the second respondent’s application for consents to take water, and those relating to land use activities?

• [21] The applications for leave to amend the questions of law are otherwise declined.

Solicitors:
Whāia Legal, Wellington for Appellant in CA48/2021
Linwood Law Ltd, Christchurch for Appellant in CA49/2021
Tu Pono Legal Ltd, Rotorua for Appellants in CA60/2021 and CA61/2021
CooneyLeesMorgan, Tauranga for First Respondent in CA48/2021, CA60/2021 and CA61/2021
Brookfields, Auckland for First Respondent in CA49/2021
Buddle Findlay, Wellington for Second Respondent in CA48/2021, CA49/2021, CA60/2021 and CA61/2021

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^[1] Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388, (2020) 22 ELRNZ 323 [High Court judgment]. We refer to the appellants as Ngāti Awa, Sustainable Otakiri, Ngāti Pikiao and Ngāi Te Rangi respectively.

^[2] Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 [Environment Court judgment].

^[3] Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2021] NZCA 354 [Leave judgment].

^[4] At [4] (footnotes omitted). On questions 1 and 2, leave was granted to Ngāti Awa and Sustainable Otakiri. On question 3, we granted leave to Ngāti Awa, Ngāti Pikiao and Ngāi Te Rangi. On questions 4 and 5 we granted leave to Sustainable Otakiri.

^[5] At [6].

^[6] Court of Appeal (Civil) Rules 2005, r 29(1)(b)(ii).

^[7] High Court judgment, above n 1, at [117]–[119].

^[8] At [119]. See also Environment Court judgment, above n 2, at [156].

^[9] Leave judgment, above n 3, at [5].

^[10] Environment Court judgment, above n 2 (emphasis added).

^[11] At [66].

^[12] High Court judgment, above n 1.

^[13] Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733.

^[14] Te Ture Whenua Maori Act 1993, s 61.