Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2024] NZCA 134 (26 April 2024)

Last Updated: 29 April 2024

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

CA69/2023 [2024] NZCA 134

	BETWEEN	TRUSTEES OF THE MOTITI ROHE MOANA TRUST First Appellant TE MARU O NGĀTI RANGIWEWEHI Second Appellant
	AND	BAY OF PLENTY REGIONAL COUNCIL Respondent

Hearing:	9 August 2023
Court:	Brown, Gilbert and Goddard JJ
Counsel:	J W Maassen and I F F Peters for Appellants M H Hill and R M Boyte for Respondent
Judgment:	26 April 2024 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

2. The appellants must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Table of Contents

Para No

Introduction [1]
Relevant background [4]
The High Court judgment [11]
The scope of the appeal [13]
Issue one: error in determining the council’s obligations under
s 8, RMA [14]
Issue two: error in finding no planning vacuum arising from
PC9 withdrawal [27]
Issue three: error concerning consultation obligations and
adequate information [33]
Consultation [36]
Adequacy of information for the Council [44]
Issue four: error in findings on adequacy of reasons and
irrationality [51]
Issue five: error in the exercise of the discretion to decline relief [64]
Result [68]

Introduction

• [1] On 18 October 2016, the respondent (the Council) notified Proposed Plan Change 9 (PC9) to the water quantity chapter of the Bay of Plenty Regional Natural Resources Plan (the Regional Plan),^[1] which became operative in 2008. PC9 was part of the Council’s implementation programme for the National Policy Statement on Freshwater Management 2014 (NPS-FM 2014).^[2] The Trustees of the Motiti Rohe Moana Trust (MRMT) filed an appeal in the Environment Court against the Council’s decision to adopt PC9, as did 13 other appellants.^[3]
• [2] On 1 September 2019, the Ministry for the Environment released a draft National Policy Statement on Freshwater Management (NPS-FM) which would replace the NPS-FM 2014. By late-2019, officers at the Council had become concerned about the utility of proceeding with PC9 in light of the nature and extent of the outstanding issues raised by the appeals and the uncertainty associated with proposed changes to national freshwater management and the NPS-FM. On 25 February 2020, the Council gave public notice of a resolution withdrawing PC9.^[4] In consequence of the withdrawal, the 14 appeals to the Environment Court were all treated as abandoned.
• [3] MRMT and Te Maru o Ngāti Rangiwewehi (together, the appellants)^[5] applied for judicial review of the Council’s decision to withdraw PC9 and sought an order remitting the decision back to the Council. That application was dismissed in a judgment of Hinton J dated 1 August 2022.^[6] The appellants now appeal.^[7]

Relevant background

• [4] As its name “Region-Wide Water Quantity Plan Change” conveyed, PC9 addressed regional issues relating to water allocation intended to improve the efficiency of water allocation and use. It was primarily concerned with how much surface and groundwater could be taken and proposed strict limits on takes. It proposed a policy framework for working with tangata whenua and the community on local water quality planning actions.^[8] Consultation on the draft took place in August 2015.
• [5] The draft NPS-FM released on 1 September 2019 was intended to be a full replacement for NPS-FM 2014. The Judge explained its implications in this way:^[9]

[20] ... This draft would become the [National Policy Statement for Freshwater Management 2020 (the NPS-FM 2020)], which significantly developed the “fundamental concept” of Te Mana o te Wai. In short, the concept requires local authorities to prioritise the health and well-being of the water body itself before human uses can be provided for. Implementation of Te Mana o te Wai was to require:

a) adopting the priorities set out in the hierarchy of obligations;

b) providing for the involvement of iwi and hapū in freshwater management and identifying and reflecting tangata whenua values and interests;

c) engaging with tangata whenua and communities to identify matters that are important to them in respect of waterbodies and their catchments;

d) enabling the application of broader systems of values and knowledge, such as mātauranga Māori, to the health and wellbeing of waterbodies and freshwater ecosystems;

e) adopting an integrated approach, ki uta ki tai, to the management of waterbodies and freshwater ecosystems.

• [6] As a consequence of the concerns earlier noted,^[10] the Council’s General Manager — Strategy & Science provided a report dated 13 February 2020 (the Report) discussing options for dealing with PC9 which included a recommendation to withdraw PC9 in full. The Report considered a range of factors relevant to withdrawing PC9 including:
  • changing national policy direction
  • implications on consents and compliance functions already underway
  • financial and staff prioritisation implications
  • capacity and capability implications for [Māori] and wider community
  • environmental implications
  • the development of new future proofed actions and activities planned following gazettal of the new (NPS-FM) in July 2020
  • [Māori] partnership/engagement planned
• [7] The Report drew attention to the challenge that a number of key matters remained unresolved and were unlikely to be settled out of court. It noted that some matters, such as Te Mana o te Wai, featured prominently in the draft NPS-FM and might be a particular policy focus in the NPS-FM 2020 which was due for gazettal in July.
• [8] The power to withdraw a plan is provided in cl 8D of sch 1 of the RMA which states:

8D Withdrawal of proposed policy statements and plans

(1) Where a local authority has initiated the preparation of a policy statement or plan, the local authority may withdraw its proposal to prepare, change, or vary the policy statement or plan at any time—

(a) if an appeal has not been made to the Environment Court under clause 14, or the appeal has been withdrawn, before the policy statement or plan is approved by the local authority; or

(b) if an appeal has been made to the Environment Court, before the Environment Court hearing commences.

(2) The local authority shall give public notice of any withdrawal under subclause (1), including the reasons for the withdrawal.

• [9] The Council’s Strategy and Policy Committee accepted the withdrawal recommendation. On 24 February 2020, the Council gave public notification of the resolution and the reasons for the decision as follows:

Pursuant to Clause 8D of the First Schedule of the Resource Management Act 1991, Bay of Plenty Regional Council, as resolved on 18 February 2020, hereby gives notice that it has resolved to withdraw Proposed Plan Change 9 Region-Wide Water Quantity to the Operative Regional Natural Resources Plan.

The proposed plan change being withdrawn relates to region-wide water quantity. Proposed Plan Change 9 (PPC9) was the first step in a two-stage approach to improving rules for water quality and quantity management in the Bay of Plenty. It was designed as an interim measure that would ‘hold the line’ on water quantity management.

The reasons to withdraw PPC9 are as follows:

• Fundamental differences of opinion remain on key issues which are unlikely to be resolved without proceeding to court.
• Resolution of outstanding appeals is unlikely to occur until after the National Policy Statement for Freshwater Management is gazetted and implementation underway.
• Continuing to pursue the resolution of the appeals would therefore be an inefficient use of resources, given new national direction on fresh water is imminent.
• Future processes and associated plan change(s) following the gazettal of the NPS-FM will enable better integration of water quality and water quantity and provide greater clarity in relation to Te Mana o Te Wai, which has been a key issue in the appeals.
• Withdrawing PPC9 will not create a planning vacuum, consents will continue to be processed under the operative plan having regard to the NPS-FM. ...

• [10] The appellants sought judicial review of the Council’s decision to withdraw PC9 on eight grounds and sought declarations that in making the withdrawal decision, the Council:^[11]

(a) was required to comply with [the Resource Management Act 1991 (RMA)] s 8; and did not comply with RMA s 8 and therefore acted unlawfully;

(b) erred by reasoning that a statutory regard under s 104 was sufficient to fill the vacuum for meeting tangata whenua interests under Part 2, RMA and to give effect to NPS-FM 2017;

(c) erred by considering possible future legal instruments announced by the Minister of the Environment and their impact as relevant to the assessment of the impact on the performance of its functions under Part 5 of the RMA;

(d) failed to consider the consequences of withdrawal on its obligations under RMA s 65(6) and the impact on its implementation plan under RMA s 65(7);

(e) unlawfully placed itself in breach of RMA, [s 79(2)] concerning review of the allocation provisions of the regional plan and failed to consider that unlawfulness;

(f) failed to give adequate reasons for its decision;

(g) failed to consider how the withdrawal affected the achievement of the RMA, Part 2 and the performance of its functions under RMA, Part 5 and therefore acted unlawfully;

(h) acted irrationally and generally and specifically in relation to the management of freshwater on Motiti Island.

The High Court judgment

• [11] The Judge commenced with a brief summary of the parties’ positions:^[12]

[74] By way of relief MRMT initially sought that the decision be remitted back to the Council with appropriate directions on the consideration of matters relevant to Part 2, the interests and values of tangata whenua and the statutory obligation to perform the functions of the regional council under Part 5 of the RMA. However in MRMT’s reply submissions it appears to seek relief by way of establishing an interim position where the Council would restrict allocations of freshwater to a 5-year term and notify tangata whenua of all applications for renewal, as interim measures. Mr Maassen [counsel for the appellants] says it is not futile for the Council to consider these matters. He says it is reasonable and appropriate for these interim measures to be put in place to protect freshwater rights if tangata whenua are prevented from protecting those interests in the Environment Court through the Schedule 1 process.

[75] The essence of the Council’s defence is that the decision to withdraw the plan change was lawful, having been made within the scope of the express power conferred on it by cl 8D of the [RMA], which provides only that the Council must give public notice of any withdrawal including the reasons for the withdrawal. The Council contends that the Treaty of Waitangi and other considerations raised by MRMT as relevant, fall outside the scope of the power conferred on the Council.

• [12] While proceeding to consider each of the eight grounds for review,^[13] the Judge identified as the central issue whether the Council’s withdrawal of PC9 was unlawful by reason of a breach of s 8 of the Resource Management Act 1991(the RMA)^[14] The Judge dismissed the claim in its entirety. In those circumstances it was unnecessary to consider relief. However, observing that the precise relief sought was unclear, the Judge stated that relief would have been declined even if a ground of review had been made out.^[15] The Judge’s reasoning is considered below in the context of the specific grounds of appeal.

The scope of the appeal

• [13] The issues identified in the appellants’ list of issues went significantly beyond both the arguments in the High Court and the scope of the judgment.^[16] Unsurprisingly the parties were unable to settle an agreed statement of issues on appeal.^[17] The appropriate starting point therefore is the notice of appeal which identified five specific grounds of appeal:
  • 1.1 The High Court erred concerning the statutory provisions that applied under RMA, Part 2 to the Council decision to withdraw [PC9]. In particular, the High Court erred in finding that the customary interests and hence Article 2 of Te Tiriti o Waitangi were not relevant under RMA, s 8 to the Council decision to withdraw [PC9].
  • 1.2 The High Court erred in finding that there was no planning vacuum or regulatory gap left by the decision to withdraw [PC9].
  • 1.3 The High Court erred in finding that there was no obligation to consult or engage with tāngata whenua on the impact of a decision to withdraw [PC9]. The High Court also erred in finding that Councillors were adequately informed on matters relevant to customary interests for the decision to withdraw [PC9].
  • 1.4 The High Court erred in finding that the Council’s reasons for withdrawing [PC9] were adequate and that the decision was rational.
  • 1.5 The High Court erred in considering the relief sought by the Appellants, as a matter of discretion, should be refused.

Issue one: error in determining the Council’s obligations under s 8 of the RMA

• [14] Section 8 states:

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).

• [15] The Judge commenced by observing that the requirements of s 8 have been extensively considered in the Environment Court, noting among other matters that the obligation to “take into account” is not intended to be higher than an obligation to consider the particular factor in making a decision, to weigh it with the other relevant factors, and to give it whatever weight is appropriate in all the circumstances.^[18] The Judge noted that the type of provision or action being considered will inform what principles of the Treaty of Waitangi (the Treaty) are relevant and the extent of consideration required.^[19]
• [16] The Judge considered it relevant that the withdrawal of a plan change is a relatively simple process,^[20] observing that on its face cl 8D of sch 1 of the RMA did not require or even allow for public input. However, the Judge rejected the Council’s primary argument that the Treaty fell outside the scope of the cl 8D power.^[21] The Judge considered that the Council must at least turn its mind to the principles of the Treaty when making a withdrawal decision.^[22]
• [17] The focus of the appellants’ challenge to this aspect of the judgment was the following finding:

[99] MRMT argues that the report did not inform councillors about the customary interests iwi were seeking to protect or the significance of those interests in a constitutional sense. However, the latter goes beyond what is required by s 8 of the RMA. The report clearly considers Māori interests insofar as they are recognised by the scheme of the RMA, such as kaitiakitanga, provision for cultural flows, the protection of mauri, and so on. To the extent MRMT wanted the Council to consider interests in the nature of customary property rights that too goes beyond what is required by s 8 and the scheme of the RMA, at least in relation to withdrawing PC9.

• [18] In the joint application for a fixture, the appellants framed the issue on appeal as whether the Judge erred at [99] in finding that s 8 of the RMA did not require the Council to “acknowledge and consider the impact on customary interests in freshwater” in making the withdrawal of PC9. The Council considered that framing the issue in that way mischaracterised the Judge’s decision which, properly construed, amounted to a finding that s 8 and the scheme of the RMA do not require consideration of “interests in the nature of customary property rights”. It emphasised that the Court did not find that “customary interests” per se fell outside the scope of s 8 or the scheme of the RMA, but only “those interests in a constitutional sense”. It contended that the issue directly raised by the Judge’s finding had been resolved in the High Court judgment in Te Whānau a Kai Trust v Gisborne District Council^[23] (and this Court’s decision declining leave to appeal),^[24] and that there is no jurisdiction under the RMA to address proprietary interests in freshwater.
• [19] The appellants argued before us that the Council had obfuscated a vital issue by arguing that the RMA is not about recognising title or property rights in freshwater. They agreed that the RMA is not a regime for declaring an ownership or allocating title to any resource, let alone freshwater. They stated:

For clarity, the Appellants do not claim title to freshwater but relationships to freshwater captured by the wider concept of Tikanga of a character that establishes the elements of customary interest. That must be recognised and provided for in allocation frameworks and decisions according to the decision‑making directions applicable to RMA, Part 2 and national policy that concern those matters. The starting point is that there may be customary interests whose scope must be examined as relevant to allocation decisions. ...

• [20] That submission prompted the following rejoinder by the Council:^[25]
  14. The Appellants now appear to accept, based on authority which came after the High Court hearing, that there is no jurisdiction under the RMA to declare proprietary rights or title in freshwater. Rather, they argue “the social/cultural factors and interests relevant to establishing what are loosely termed customary proprietary rights are the same factors and interests that powerfully engage and are relevant to RMA s 6(e), s 7(a) and s 8 and hence must be addressed when performing freshwater allocation and management functions. That is why the National Policy Statement on Freshwater Management 2014 and 2017 referred to tangata whenua interests in freshwater.”
  15. Despite the “loose” terminology, the Respondent does not disagree that Māori customary values and interests are relevant to planning processes concerning freshwater under the RMA. That is why they were considered in connection with the decision to withdraw PC9. The High Court found, in relation to the Council officer’s report that informed the decision to withdraw PC9 (Officer’s Report), that “The report clearly considers Māori interests insofar as they are recognised by the scheme of the RMA, such as kaitiakitanga, provision for cultural flows, the protection of mauri, and so on.

The Council submitted that it was therefore difficult to distil what the appellants considered the High Court got wrong on this issue.

• [21] We agree with the Council’s characterisation of PC9 as an interim step in the much wider programme of implementation of the NPS-FM. PC9 did not purport to resolve issues relating to Māori customary rights or values in freshwater. We consider there is force in the Council’s contention that, rather than focussing on what the Judge actually said, the appellants have sought to advance a broader proposition along the lines that the Council, and the Judge in upholding the Council’s decision, failed to adequately address and consider Māori customary interests in freshwater.
• [22] In their submissions before this Court, the appellants stated that a key aim of the Environment Court appeal was for the Regional Plan to explicitly recognise the existence of interests in the nature of customary interests in freshwater. They maintained that such recognition would have consequences for allocation decisions in the interim until a new framework was fully developed. But as the Judge correctly explained:

[102] The concerns raised by MRMT in its submissions relating to customary freshwater interests are significant and important. However, the place for their consideration, in greater and more substantive depth, is in the development of the new plan.

The new plan to which the Judge referred is the comprehensive plan change required under the NPS-FM 2020, which must be notified by 31 December 2024.

• [23] Despite the appellants’ optimism that the pursuit of the Environment Court appeal process would advance their stated aim, we consider such belief was misconceived in the circumstances where, as the second of the Council’s five reasons for withdrawal stated in the Report and the public notification, the resolution of the appeals was unlikely to occur until after the NPS-FM was gazetted and implementation was underway. That the Judge was alive to that reality was apparent from her response to the appellants’ submission that the withdrawal of PC9 would take away necessary “well-constructed tikanga practices” for managing freshwater:

[107] ... Such practices may be what MRMT hoped to see from the PC9 appeals but it was by no means certain nor the primary purpose of PC9 to implement such practices. Additionally that is what the NPS-FM 2020 addresses and the Council, in focussing on its implementation, will get closer to MRMT’s desires than pursuing PC9 appeals.

• [24] This appeal is not the appropriate vehicle to secure the recognition of the customary interests in freshwater for which the appellants contend. The issue on this aspect of the appeal is whether the Judge made a material error of law in interpreting what s 8 of the RMA required.
• [25] The Judge considered that on the evidence, including the Report, the Council took into account the principles of the Treaty in relation to the decision to withdraw PC9.^[26] The Judge considered the Council was alive to the relationship of tangata whenua with freshwater and was aware of the need to actively involve tangata whenua in the development of Māori freshwater values and other processes relevant to freshwater management.^[27] In the concluding paragraph on this issue, the focus of the appellants’ challenge, the Judge recorded that the Report clearly considered Māori interests insofar as they are recognised by the scheme of the RMA, such as kaitiakitanga, provision for cultural flows and the protection of mauri.^[28]
• [26] We do not consider that the Judge’s analysis involved any material error of the nature alleged.

Issue two: error in finding no planning vacuum arose from PC9 withdrawal

• [27] The appellants’ case in the High Court was that the Council erroneously thought that, because consents would continue to be processed under the operative plan, the withdrawal of PC9 would not create a planning vacuum. While professing to some difficulty in understanding this ground, the Judge did not consider there was evidence to support the alleged planning vacuum, stating:

[105] ... MRMT’s planner, Ms Marr, was not involved in the development of PC9 and her evidence discusses only at a generic level the desirability of having clear allocation limits in plans. She suggests that [the] Council should be granting short-term consents in the interim pending the future plan changes (implementing the NPS-FM 2020) and says that over-allocation will inevitably result in tangata whenua values and interests not being appropriately provided for. However, as noted, these are generalised statements which are not supported by evidence before me. There is in fact material evidence from the Council to the contrary, but the point is rather that there is no evidence to support the contention raised by MRMT.

• [28] The evidence from the Council, which did not appear to be contradicted, was that in actual practice the withdrawal of PC9 had very little, if any, impact on how consent applications relating to water were considered by the Council.^[29]
• [29] Although the appellants sought to maintain this ground of appeal by contending that there could be some material impairment to tangata whenua customary interests resulting from the withdrawal of PC9, there was no effective challenge to the Judge’s evidential analysis.
• [30] In any event, we consider that the appellants’ contention is met by the respondent’s argument that PC9 did not provide greater scope to consider customary values and interests than already exists under the operative Regional Plan. Ms Hill, appearing for the Council, made the point that the operative kaitiakitanga chapter of the Regional Plan, which was not proposed to be amended by PC9, continues to apply.
• [31] Ms Hill submitted that there was comfort in the interim because the Council is required to have regard to the NFS-FM 2020, including Te Mana o te Wai, when processing consents in the interim prior to notification of the new plan change. This was explained in the fifth of the reasons for withdrawal set out in the public notification. Indeed, Ms Hill suggested that this was arguably an improvement on the PC9 position, which relied on the former NPS-FM 2014, which gave less priority to that concept.
• [32] We can discern no error in the Judge’s reasons for rejecting the planning vacuum ground of review.

Issue three: error concerning consultation obligations and adequate information

• [33] This ground of appeal combines two issues:

(a) the existence of an obligation to consult with tangata whenua concerning a withdrawal decision; and

(b) whether the Council were adequately informed on matters relevant to customary interests.

• [34] In the application for a fixture, the appellants formulated both these contentions under the umbrella of their s 8 challenge. It appears that was also the approach taken in the High Court, as the Judge explained:

[79] I understand the focus of Mr Maassen’s argument to be that there is a requirement under s 8 for the Council to properly consult with tangata whenua before making the decision to withdraw, and a requirement to be fully informed of duties to protect the interests of tangata whenua and of the Treaty landscape.

• [35] However, we will address them as discrete grounds of appeal consistent with the notice of appeal and the parties’ submissions.

Consultation

• [36] The pleaded allegation was that the Council failed to consider the option of consultation with tangata whenua to inform itself on tangata whenua perspectives and involve tangata whenua in decision-making before making a decision to withdraw PC9. The Judge did not consider that there was any need for the Council to separately inform itself as part of the withdrawal decision-making. She considered that the Council was obviously well aware of the relevant issues, having been through extensive involvement with tangata whenua groups both in the development of PC9 and subsequently in mediation efforts with the tangata whenua appellants.^[30]
• [37] However, the basis for the rejection of the appellants’ complaint was the Judge’s conclusion that consultation was not required in respect of a decision to withdraw a proposed plan change.^[31] The Judge accepted the Council’s submission that the reasoning in West Coast Regional Council v Royal Forest and Bird Protection Society and Coastal Ratepayers United Inc v Kapiti Coast District Council applied.^[32] In West Coast, which concerned a partial withdrawal, the Court stated that cl 8D and the exercise of the right under it was a mechanical decision, not a substantive one.^[33] The only requirements were public notice and the giving of reasons, although, as Hinton J noted, the latter are reviewable.^[34]
• [38] Rejecting the appellants’ argument that West Coast was distinguishable on the basis it concerned a partial withdrawal, the Judge considered that the principles were equally applicable to a full withdrawal of a plan.^[35] The Judge explained:

[82] The withdrawal of a plan change does not deprive the parties of a right to participate in the substantive content of the plan, and to be consulted in that context. It is undisputed that the Council will be notifying a replacement plan(s) for [freshwater]. Indeed, as the Council submits it must do so because the NPS-FM 2020 and the RMA require it to. Further, the Council must, in terms of NPS-FM 2020 cl 3.4(1)(b), actively involve tangata whenua to the extent they wish to be involved in freshwater management, including in making or changing regional policy statements and plans so far as they relate to freshwater management.

• [39] In this Court, the appellants challenged the proposition that the withdrawal power is mechanical, “especially where the decision affects key Māori interests”. Noting that mechanical was not a term coined by the Council, Ms Hill emphasised that it was not a particularly apt description of the process undertaken by the Council, which was comprehensively set out in the Council’s evidence. We note that the Judge expressed reservations about reading too much into the description in West Coast of cl 8D as mechanical, stating:^[36]

[83] ... While withdrawal is not strictly substantively significant, because it merely returns parties to the status quo, it is procedurally significant because of the delay it arguably causes. That will have real effects on interested parties. As the Supreme Court noted, s 8 will also have procedural implications.

We endorse those comments.

• [40] Although the appellants’ written submissions stated that West Coast was either “not on-point, distinguishable or an incomplete statement of the law”, that proposition was not developed in argument. We agree with the Judge’s analysis that the reasoning in West Coast applies with equal force to the full withdrawal of a proposed plan change. The withdrawal of a proposal of the nature of PC9 should not have a substantive effect because, as in the present case, it will be followed by a replacement plan change on which interested parties can make submissions. Hence, public participation should only be temporarily impeded.
• [41] We accept the Council’s submission that there was no intention to deprive the appellants (or any parties) of any substantive interests. It was the Council’s expectation that the new plan change would comprehensively address any aspects of the operative plan which required review and, upon notification, the appellants (and any interested party) would have the opportunity to engage in the process and make submissions.
• [42] In our view, there was no error in the Judge’s conclusion that there was no obligation to consult with tangata whenua prior to the decision to withdraw PC9.
• [43] Before leaving this topic it is appropriate to note that, as the Judge observed,^[37] the Council undertook a considered and transparent process when reaching its decision to withdraw PC9. The detail of the process itself was not the subject of challenge either in the High Court or this Court, save for the argument that “consultation” was required but not undertaken. What such consultation would have required was not explored, nor was the question of whether the process actually followed might have constituted consultation.

Adequacy of information for the Council

• [44] In this Court, the appellants submitted that there was a dearth of reasoning and only superficial treatment of tangata whenua issue interests in the Report. That state of affairs was said to reflect the Council’s approach that a decision to withdraw a plan change was mechanical and hence unfettered. The Report was also criticised for failing to deal adequately with the asserted planning deficit for tangata whenua from the loss of the PC9 changes to the Regional Plan water allocation policies and rules that aimed to secure tangata whenua involvement in decision-making on consent applications. It was the appellants’ contention that throughout the proceedings, the Council’s stance was that tangata whenua customary interests in freshwater are not interests relevant to allocation decision-making but are a matter solely for the Crown to recognise under Te Tiriti.
• [45] That last proposition was viewed by the Council as a misrepresentation of its position and plainly incorrect. Ms Hill emphasised that the Council had made it clear throughout that it accepts that customary interests and values in freshwater are relevant to freshwater decision-making and are required to be addressed in plans under the NPS-FM. However, customary interests that are proprietary, in the sense described by this Court in Te Whānau a Kai Trust, are not. The submission reiterated that PC9 did not address customary interests in freshwater.
• [46] The Council contended that the issue of the adequacy of information was carefully and comprehensively addressed by the Judge, particularly by reference to the Report. The relevant part of the judgment stated:

[92] Second, and importantly, the Council considered a detailed report in relation to the withdrawal of PC9, and held a meeting to discuss this report. The 13 February 2020 report set out three recommendations, being that the Strategy and Policy Committee:

1. Receives the report, Consideration of Option to Withdraw Proposed Plan Change 9 (Region-wide Water Quantity Plan Change);

2 Agrees to withdraw PPC9 in full;

3. Endorses staff working closely and, where practicable, in partnership with tangata whenua in freshwater management and policy development.

[93] Although MRMT describes the consideration of tangata whenua issues as “breathtakingly light”, this does not reflect the content of the report. For example, under the section “Summary of Key Issues for PPC9 Appeals”, the first issue is “Tangata whenua matters” which included the following comments:

• The incorporation of Te Mana o te Wai (TMOTW) in PC9. Sought greater recognition of Te Tiriti.

• Provision of cultural flows.

• Associated amendments (including consent timeframes and activity status).

These matters remain a core area of tension. TMOTW is a core concept under [NPS-FM] (2017) and has been signalled for further consideration under the proposed [NPS-FM] 2020. Unfortunately, recent feedback suggests this topic cannot be settled out of court.

[94] The report then considered how the withdrawal will affect Council relationships with tangata whenua. The section is set out in full below.

5 Working With Tangata Whenua

In its recommendation to consider withdrawal the Appeals Subcommittee recognised the considerable importance of freshwater and any PPC9 decision to tangata whenua. One of the key concerns raised by the subcommittee was that this decision might erode goodwill or be perceived as a backward step.

Staff wish to take advantage of the momentum from PPC9 and intend to coordinate a meeting with the tangata whenua (Group 1) appellants (individually or as a collective) to progress discussions that commenced via PPC9. Options being considered include the development of an engagement hub and/or reference groups resourced to support Council to implement the NPSFM. Staff have committed to progress work in the tangata whenua space with urgency to ensure momentum gained through PPC9 is not lost, and any freeing of resources that might result from the committee decision are made the most of.

It is important to acknowledge that the [Bay of Plenty] cultural landscape is diverse and characterised by groups at different levels of capacity. Staff intend commencing early discussions with tangata whenua (where relationships need establishing and/or strengthening) to coordinate a more responsive approach to engagement with these iwi — perhaps modelled on agreed ways of working with those further ahead in their thinking. These discussions will emphasise a transition to a working relationship centred on the immediate need to better understand the [freshwater] resource (and thus key management needs) and build mutual capacity. The hope would be to rapidly progress discussions from “how” we work with tangata whenua to more applied conversation about practical work required to help tangata whenua as kaitiaki and [the] Council to better manage [freshwater]. For example, there have been discussion of preparing inventories of cultural values and working on cultural flow assessments — with ‘ownership’ of data/information to be determined when the question arises.

It should also be noted that [the] Council’s positioning and timing to enable iwi participation in the Eastern Bay of Plenty is heavily influenced by the Treaty settlement process. Some of these processes are unique in terms of the role iwi leadership might have in [freshwater] management. Staff are currently working alongside iwi and key Crown agency partners to identify opportunities for council to support the position of [freshwater] outcomes within the Treaty settlement process and to understand and anticipate the role of council post settlement.

[95] In considering whether to withdraw parts of PC9 instead of the whole, the report stated:

Tangata whenua concerns remain key. These cut across almost all PPC9 provisions. Removing all but the least controversial of these provisions would be an affront to tangata whenua (for whom the presence of these provisions is some comfort) and would risk inconsistencies creeping into the plan change.

[96] At 6.2 of the report the writers considered “Implications for Māori” which included consideration of “Statutory Obligations to Tangata Whenua” and “Key Considerations for Māori”. This section included consideration of Iwi having limited financial and human resources, concerns about mauri being degraded while not integrated into default operative limits, erosion of trust and increased apathy, and the opportunity for improved engagement through the implementation of the NPS‑FM 2020. Mr Gardiner [a senior planner at the Council] deposes that he answered councillor’s questions on these topics at the meeting.

The Judge’s ultimate conclusion that the Council was adequately informed is contained at [99] of the judgment, which we considered earlier.^[38]

• [47] Mr Maassen, counsel for the appellants, acknowledged that the Report contained a substantial amount of information about the anticipated advantages of the next phase of policy development and the undesirability of pursuing both that policy development and PC9 concurrently. In those circumstances and in light of the Report’s conclusion (in 6.5) that the same or similar outcomes were likely to be achieved on consent applications whether or not PC9 was withdrawn, we pressed Mr Maassen as to the basis for any intervention by the Court.
• [48] Recognising the challenge he faced, Mr Maassen returned to the issue of the identification of customary interests discussed previously in the context of Issue One, particularly with reference to [99] of the judgment. He explained that the interests of tangata whenua represent a new area of development in the freshwater space. His criticism of the Report was that the expression of confidence (in 6.5) that there would be no lesser outcomes was not a tangata whenua focussed assessment.
• [49] The difficulty we have with that line of argument is that the Council was not saying that it did not intend to explore the issue: its intention to do so was manifest in 6.2.2 of the Report. Rather, the Council was simply saying that having PC9 on foot did not assist in that endeavour. Pressing on with PC9 was simply a drain on the resources of both the Council and tangata whenua. Despite Mr Maassen’s skilful argument, we were not persuaded that the nature of those asserted interests of tangata whenua was relevant to the decision about running a parallel process.
• [50] Consequently, the argument that the Report failed to provide adequate information and hence the Council was not adequately informed was not made out and there was no error in the judgment in that respect.

Issue four: error in findings on adequacy of reasons and irrationality

• [51] The fourth ground of appeal combined two of the grounds for review advanced in the High Court, namely ground 6 (failure to give adequate reasons for a withdrawal) and ground 8 (irrationality).
• [52] With reference to the first ground, the Judge explained that the requirement to provide reasons is one of procedural fairness, the merits of the reasons not being relevant unless they go to the point of irrationality.^[39] The Judge rejected the reasons‑based attack, concluding that the five reasons provided in the public notification were clear and provided an explanation as to why the Council had decided to withdraw PC9.^[40]
• [53] In support of the irrationality ground, the appellants submitted in the High Court that the threshold of reasonableness is narrower than the usual Wednesbury formula because the decision to withdraw PC9 concerned the performance of duties relating to art 2 of the Treaty and customary rights to tangata whenua resources.^[41]
• [54] While noting that no authority was advanced for the proposition that the rationality threshold should be lower in a tikanga-based case, the Judge accepted that it might be “different” as tikanga principles would be applicable, but not lower.^[42] On this issue, the Judge concluded:

[137] However, whatever the threshold for unreasonableness, it is not met here. I have not been provided with material that would show the decision to withdraw is irrational or even close to it. Resolving the Environment Court appeals against PC9 (including an appeal by MRMT) was likely to have taken many months and probably years. Furthermore, any decision made by the Environment Court would then be pointless because it would concern a plan change which had had a limited life and had to be replaced by the more comprehensive freshwater plan change required under NPS-FM 2020. Running the appeals would also have been a very expensive and resource‑intensive exercise. While I am satisfied as to all of that on the evidence, none of it needs to be demonstrated. Rather, MRMT needs to demonstrate that there was no probative reason for withdrawal. It has failed to do that.

• [55] On appeal, the appellants maintained their contention that a lower threshold of reasonableness was warranted, making the point that intensity of review adjusts to context and submitting that the performance of Treaty obligations warrants close scrutiny of regional council performance. We do not accept that proposition. On this issue, we agree with the Judge’s analysis:

[134] It is well established that the threshold for judicial review involving local authorities on the grounds of unreasonableness is high. The decision would need to be not supported by any cogent evidence, or be self‑contradictory or based upon an evident logical fallacy. The test is not merits-based, for obvious reasons.

• [56] In challenging the Judge’s conclusion at [137], Mr Maassen submitted that no rational council, properly directed on the law, could give as its “primary” reason for withdrawing PC9 merely that the parties to the appeal disagreed on the implications of Te Mana o te Wai as related to customary interests. As he put it, when the “headline reason” is that people disagree with you and you are in the minority, it is a very uncomfortable position to be in. Indeed, in the course of addressing the issue of discretion and the appropriateness of declaratory relief, it was suggested that the flavour which the appellants had drawn from the process was that the Council was in effect saying either agree or we are going to withdraw PC9.
• [57] We indicated to counsel that that was not our interpretation of events. The Council was simply saying that we are on this path which is going to be very slow and very expensive unless everyone agrees. That perspective needs to be seen in the context of the analysis in the Report that, in light of impending national policy and law changes, it was considered unlikely that any particular provision of PC9 would remain untouched under the plan changes to implement the NPS-FM:

This context has weighed heavily on all parties. On one hand, most acknowledge the significant change afoot and have accepted [PC9] provisions will not endure. But on the other hand, many have a genuine concern that [PC9] could set a precedent. Thus there is an awkward reluctance to abandon specific appeal remedies.

• [58] While the recognition of differences of opinion was the first in the list of the published reasons, we do not consider that it was the principal reason, as we understood Mr Maassen to contend. On our reading, the first, second and third reasons involved a chain of reasoning, the tenor of which was that the unlikely prospect of resolution of differences would necessitate completion of the appeal process which would likely be overtaken by the implementation of the NPS-FM and hence involve an inefficient use of resources. While not expressly stated, that inefficiency would involve the Council contemporaneously defending its decision on PC9 in the appeals process while endeavouring to engage collaboratively with iwi (including the appellants) on the new plan and its implementation.
• [59] The appellants’ submission was elaborated in this way:

The Council could not rationally allow commercial interests to disagree with taāngata whenua about the relevance of customary interests and say that disagreement justified withdrawing the plan change. That was not a case of working with tāngata whenua to secure their interests by active protection as required by NPS-FM 2014. It was the opposite. Further, the Council’s other reasons were either irrelevant or wrong. No reasonable Council could have concluded, for example, there were no gaps concerning customary interests in the operative regional plan.

• [60] We do not accept that the remaining four reasons were irrelevant to a decision to withdraw PC9. Nor did we receive persuasive argument that they comprised a flawed analysis. With reference to the fifth reason, it is not accurate to say that the Council concluded there were no gaps in the Regional Plan concerning customary interests. Ms Hill made the point that the work on cultural values and flows had not been undertaken at the time PC9 was notified, but that work is now underway as part of the NPS-FM process. The fifth reason was no more than a comparison of the consent process with and without PC9.
• [61] In our view, the Council’s decision was entirely understandable in the circumstances that prevailed. The irrationality ground of appeal inevitably fails.
• [62] Finally, we note that in the course of argument Mr Maassen mounted a discrete argument about adequacy of reasons. He submitted that one of the legal boundaries imposed by Parliament on the cl 8D power is the requirement to give reasons which, Mr Maassen contended, must mean adequate reasons. He said that such reasons are necessary in order to show fidelity to the purposes of the Act.
• [63] When asked whether he took issue with the Judge’s statement that the merits of the reasons are not relevant unless they go to the point of irrationality,^[43] he replied that it was too broad a statement. He referred to the judgment of Elias CJ in Helu v Immigration and Protection Tribunal as authority for the proposition that the purpose of reasons was not a tick-box exercise but to ensure that the reasoning process demonstrates a methodology that is faithful to the legislative purpose.^[44] In our view, Elias CJ was there warning against the dangers of the adoption of inflexible methodologies in respect of the exercise of statutory powers of decision. We do not read those comments as supporting the proposition that the obligation to give reasons invites consideration in a judicial review context of the merits of those reasons. To do so would risk transforming the review task into an appellate function.

Issue five: error in the exercise of the discretion to decline relief

• [64] Referencing her earlier comments concerning the relief sought^[45] and observing that MRMT seemed to consider that it could negotiate some form of common position between itself and the Council for interim management of freshwater pending the new changes, the Judge observed that was not what PC9 was about.^[46] The judgment concluded in this way:

[142] Plainly, much of the relief sought by MRMT, particularly in relation to provision for customary interests, goes beyond the limited scope of PC9 and of Council’s decision on PC9. I agree with the Council; it is more in the nature of wishful thinking than relief that would be appropriate were one of the grounds to succeed.

[143] As Ms Hill submits, even if the Council were to agree to present a joint proposal to the Environment Court along the lines MRMT suggests by way of relief, the Environment Court would not be in a position to accept it. The Court would need to conduct a hearing of the appeals. That is not a process over which the Council is in control.

[144] It is relevant that MRMT is not the only tangata whenua party who appealed against PC9. The many other appellants and interested parties will have their own interests which may well not align with those of MRMT. Further, one iwi actually sought withdrawal of PC9 as the relief in its appeal.

[145] I agree with the Council that the relief sought by MRMT would not be capable of order by this Court. Repeating the decision-making process in this case would be unlikely to result in a different outcome to the present and would have little, if any, chance of resulting in the outcome sought by MRMT.

• [65] Given our conclusion that none of the grounds of appeal is made out, it is unnecessary to consider the exercise of the discretion to grant relief. However we recognise the reality that, even if the Council was directed to reconsider its decision and, having done so, decided to resurrect PC9, the determination of the appeals by the Environment Court would almost certainly be overtaken by the replacement plan change which must be notified by the end of the current year.
• [66] While never flagging in advocating his clients’ case, Mr Maassen accepted that pragmatic considerations had to bear on the exercise of the discretion. He further noted that, while judicial review proceedings often involve an engagement between an individual and the State (or its surrogates) where only two parties are involved, an odd feature of this case was it presented a much more complex matrix. That state of affairs was reflected in the Judge’s reasons at [141] and [144].
• [67] Such complexity may have led to the formulation of the interim measures advanced by the appellants in the course of reply in the High Court.^[47] However, the Judge’s view that relief of that nature could not be granted was plainly correct. We discern no error in the Judge’s analysis of the factors bearing on the exercise of the discretion to decline relief.

Result

• [68] The appeal is dismissed.
• [69] The appellants must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

Solicitors:
Kaupare Law and Consultancy, Auckland for Appellants
Cooney Lees Morgan, Tauranga for Respondent

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^[1] Bay of Plenty Regional Council Bay of Plenty Regional Natural Resources Plan (May 2018).

^[2] Ministry for the Environment National Policy Statement for Freshwater Management 2014 (August 2014) [NPS-FM 2014]. We note that the NPS-FM 2014 was amended in 2017 pursuant to s 53 of the Resource Management Act 1991 [the RMA].

^[3] In addition, 26 parties filed notices to become parties to the appeals pursuant to s 274 of the RMA. A court-assisted mediation process during 2019 was unsuccessful.

^[4] Pursuant to cl 8D, sch 1 of the RMA: see [8] below.

^[5] With a third applicant, Ngāti Makino Heritage Trust, which withdrew prior to the hearing. Ngāti Rangiwewehi explained contrary to [11] of The Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2022] NZHC 1846 [judgment under appeal], its representatives remained present throughout the hearing. Ms Hill, counsel for the respondent, appropriately acknowledged that [11] of the judgment under appeal was incorrect.

^[6] Judgment under appeal, above n 5. The judgment also dismissed an appeal by MRMT against a decision of the Environment Court, in which the Court declined to make declarations under s 310 of the RMA that the Council’s decision to withdraw PC9 was unlawful on the ground the Court lacked jurisdiction: The Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2020] NZEnvC 180.

^[7] The appellants’ application for leave to appeal directly to the Supreme Court was dismissed: The Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2022] NZSC 144.

^[8] Judgment under appeal, above n 5, at [17]

^[9] Footnote omitted.

^[10] At [2] above.

^[11] See judgment under appeal, above n 5, at [72].

^[12] The references to MRMT only reflect the Judge’s belief that both the other applicants had withdrawn: see above n 5.

^[13] We note that while the Council addressed all grounds, MRMT did not address a number of them.

^[14] Judgment under appeal, above n 5, at [73]. The Judge first considered the appeal against the Environment Court’s decision: see [26]–[71].

^[15] At [139] and [142].

^[16] This was brought to counsel’s attention by a minute of Goddard J dated 8 August 2023 advising that at the hearing, this Court would expect counsel for the appellants to address the issues raised in the notice of appeal.

^[17] The points of difference were spelled out in the joint application for allocation of a hearing date.

^[18] Judgment under appeal, above n 5, at [77(a)], citing Bleakley v Environmental Risk Management Authority [2001] 3 NZLR 213 (HC).

^[19] At [78].

^[20] At [78]. The Judge contrasted a withdrawal with an actual plan change, matters such as determinations of applications for resource consent or decisions on submissions on a plan change.

^[21] See [11] above.

^[22] Judgment under appeal, above n 5, at [89].

^[23] Te Whānau a Kai Trust v Gisborne District Council [2022] NZHC 1462, (2022) 23 ELRNZ 991.

^[24] Te Whānau a Kai Trust v Gisborne District Council [2023] NZCA 55.

^[25] Footnotes omitted and emphasis in original.

^[26] At [90].

^[27] At [90].

^[28] At [99].

^[29] At [106].

^[30] At [91].

^[31] At [81].

^[32] West Coast Regional Council v Royal Forest and Bird Protection Society [2007] NZRMA 32 (HC); and Coastal Ratepayers United Inc v Kapiti Coast District Council [2017] NZHC 2933, (2017) 20 ELRNZ 548.

^[33] See West Coast Regional Council v Royal Forest and Bird Protection Society Inc, above n 32, at [57]–[58].

^[34] Judgment under appeal, above n 5, at [80].

^[35] At [81].

^[36] Footnote omitted.

^[37] Judgment under appeal, above n 5, at [100].

^[38] Set out at [17] above.

^[39] Judgment under appeal, above n 5, at [124]–[125].

^[40] At [127]–[128].

^[41] At [133].

^[42] At [135].

^[43] At [125].

^[44] Helu v Immigration and Protection Authority [2015] NZSC 28, [2016] 1 NZLR 298 at [1].

^[45] See [11] above.

^[46] Judgment under appeal, above n 5, at [140].

^[47] See at [11] above.