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High Court of New Zealand Decisions |
Last Updated: 18 September 2012
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV-2012-470-65 [2012] NZHC 2407
UNDER Section 229 of the Resource Management
Act 1991
IN THE MATTER OF an appeal against Environment Court
Decision No. [2011] EnvC 402
BETWEEN NGATI RUAHINE Appellant
AND BAY OF PLENTY REGIONAL COUNCIL First Respondent
AND PORT OF TAURANGA LIMITED Second Respondent
AND TE RUNANGA O NGAI TE RANGI IWI TRUST
First Third Party
AND THE ATTORNEY-GENERAL Second Third Party
Hearing: 22 and 23 August 2012 (Heard at Hamilton)
Appearances: P Kapua for the Appellant
J P Koning for Te Runanga o Ngai Te Rangi Iwi Trust (supporting
Appellant)
P H Cooney for Respondent
V J Hamm and M Paddison for Port of Tauranga Limited
P A McCarthy for the Attorney-General (Intervenor) Judgment: 18 September 2012
RESERVED JUDGMENT OF PRIESTLEY J
This judgment was delivered by me on 18 September 2012 at 11 am pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar
Date:...............................
NGATI RUAHINE V BAY OF PLENTY REGIONAL COUNCIL HC TAU CIV-2012-470-65 [18 September
2012]
Contents
Paragraph
Introduction 1
Consents and cultural clash 7
Part 2 Resource Management Act 1991 14
In the Environment Court 15
Issue at the outset 17
The history 18
Cultural effects 19
Fisheries 21
The Court’s conclusions on cultural effects 23
Environment Court decision 24
Discussion of appeal issues 29
Analysis 61
Result 91
Introduction
[1] Port of Tauranga Limited (PTL) is a public company which operates the Tauranga Port. In terms of volume Tauranga is New Zealand’s largest port. Significant import and export cargos (particularly logs) are loaded off and on to vessels at the Port’s wharves.
[2] Tauranga Harbour (Te Awanui) is large. The inner harbour comprises a number of tidal estuaries. Natural protection from the Pacific Ocean is afforded by both Matakana Island and Mt Maunganui (Mauao) with its small, densely developed isthmus.
[3] The wharves, container storage, and warehouse facilities at the Port are concentrated on the harbour side of the isthmus. The channel through which ocean- going vessels enter the harbour and port is narrow. To enter, ships must sail an approximate north-south course. The channel is bounded on the west side by Panepane Point, a promontory of Matakana Island, and Mauao on the eastern side. Having passed through this outer channel ships turn approximately south-east, entering Cutter Channel and the Maunganui Roads where the wharves are situated.
[4] Although the huge volumes of water attributable to the tidal ebbs and flows of the enclosed harbour undoubtedly would have created a significant channel between Panepane Point and Mauao, in recent times that channel has been augmented by dredging.
[5] The Port and channel, as I have described them, have coped with a steadily increasing volume of shipping over the last three decades. International trade and the use of New Zealand ports has changed significantly in half a century. Ships no longer anchor in a stream awaiting a berth at a wharf and then coming alongside where their holds are unloaded in a leisurely fashion using slings and cranes. Instead large container ships, piled with cargo containers on their super-structures, visit a port for a few hours. Their containers are unloaded or loaded with straddling cranes.
The imports and exports vital for New Zealand’s economy and standard of living sit inside the containers.1
[6] Large container ships and bulk log carriers thus visit and leave the Port of Tauranga. So too, in recent years, do cruise ships in the summer months. The sight of large vessels passing through the narrow channel I have described is undoubtedly an exciting spectacle. The size of the vessels involved, coupled with traditional navigation and sailing hazards of wind and tide bring accompanying risk. Undoubtedly a high degree of skill is required by the Port’s pilots.
Consents and cultural clash
[7] With an eye to the future, and being aware that in approximately 10 years time the size of container vessels visiting New Zealand ports will have increased, PTL sought various consents under the Resource Management Act 1991 (the Act) and relevant Rules of the Bay of Plenty Regional Coastal Environment Plan. For statutory reasons, which I need not detail, the relevant jurisdiction included making recommendations to the Minister of Conservation.
[8] The consent applications made by PTL involved:
(a) Deepening, by some 3.3 metres, the Port’s entrance channel. This deepening included part of the Tanea Shelf.2
(b) Widening the channel at a certain point by removing 32 metres of
Tanea Shelf.
(c) Deepening the inner section of Cutter Channel and Mt Maunganui
Roads by 3.1 metres and widening those channels by up to 115 metres, varying at different points along the channel.
1 Ships designed to carry bulk logs and secondhand cars are notable exceptions to containerised shipping.
2 Tanea Shelf refers to the submarine rock or boulders lying, in the main, on the west side (ocean side)
of Mt Maunganui.
(d) Creating a defined turning basin (in which large ships could turn on arrival or departure from the wharves) adjacent to Sulphur Point which would involve widening and deepening Stella Passage and a portion of the Otumoetai Channel to 16 metres.
[9] There is no need for the purposes of this judgment to describe the precise position of Sulphur Point and Stella Passage. The turning basin can generally be described as opposite the wharves or berths.
[10] In general terms the sought consents permitted dredging, depositing dredged materials in the coastal marine area, disturbing the sea bed, discharging sediment, and depositing boulders (to create an artificial reef), and carrying out beach nourishment.
[11] The consents thus entailed dredging and interference with the Tanea Shelf (being the submarine extension of Mauao). They also involved some interference with pipi beds on the southern side of the inner channel and the area of the proposed turning basin. Some channel widening just off Panepane Point was involved. Finally, the channel itself ran through a mataitai or designated kaimoana customary fishing area (the Mataitai Reserve) established under the Fisheries (Kaimoana Customary Fisheries) Regulations 1998, authorised in turn by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.
[12] From an economic standpoint, and certainly when viewed through the lens of a port operator, the consents sought and the motivation behind them are understandable. From a Maori standpoint, however, and seen through the lens of the cultural and historical significance of the tangata whenua’s environment, the consents had huge adverse effects.
[13] When PTL’s applications were before Commissioners the cultural aspects at the centre of this appeal were considered. The Commissioners acknowledged the impact of the applications on tangata whenua. Indeed they regarded the relationship between tangata whenua and the marine and coastal area as the key issue. Their conclusion was that the consents sought would promote sustainable management
despite the fact that the relationship between tangata whenua, Te Awanui, and Mauao was significantly affected. It was from that conclusion that an appeal was made to the Environment Court.
Part 2 Resource Management Act 1991
[14] Although to do so departs from the traditional structure of a judgment, I set out here the relevant provisions of Part 2 of the Act. These were essential to the issues with which the Environment Court grappled. They are also central to counsel’s submissions in this appeal. They point to the cultural clash to which I have referred in [12] between PTL’s consent applications and the interests of the tangata whenua.
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 well-being 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:
...
(g) the protection of protected customary rights
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).
In the Environment Court
[15] The Environment Court was, in my judgment, particularly well equipped to grapple with the issues before it. It was a court of four members. It was presided over by Judge J A Smith. Its second member was the Deputy Chief Maori Land Court Judge, Judge C Fox. The other two members were Environment Commissioners A J Sutherland and H M Beaumont, who had engineering and ecological expertise respectively.
[16] I intend to replicate extensively, in this section of my judgment, relevant passages of the Environment Court’s judgment which was delivered on 21 December
2011. I do this, not for reasons of sloth or disinclination to summarise. Rather the passages demonstrate how alert the Court was to the cultural clash to which I have referred and the detailed sensitivity the Court had to the background.
Issue at the outset
[17] At the outset of its judgment the Court expressed the cultural issue confronting it thus:
[1] How do we integrate the competing interests of the Port of Tauranga
... seeking to widen and deepen the entrance to its entry channel to accommodate larger ships, while recognising and providing for the
legitimate cultural concerns and relationship of relevant local iwi who have
an interest in Mauao (Mt Maunganui), Panepane Point on Matakana Island,
and the large pipi beds in and around the entrance to the wider harbour of
Tauranga Moana known as Te Awanui?
The history
[18] The Court then detailed the adverse impact on Maori cultural values of European use of the Tauranga Harbour, land confiscation, and Tauranga Port activities:
[14] The Tauranga Harbour has been a source of unrest for many generations of Maori. It has reached the point now, that the Waitangi Tribunal (WAI 215) noted:
... The understandable result has been that some Tauranga Maori have become so frustrated that they themselves are no longer engaging with local authorities in the necessary spirit of good faith, and willingness to compromise, that must characterise the Treaty partnership.
[15] This is not a result of a single event but a culmination of a number of events where the Waitangi Tribunal recently held that:
... it cannot be consistent with the principles of the Treaty to strip Maori of possession of their Taonga by 'tacit application of presumptions of English law of which Maori knew nothing'.
[16] Tauranga was one of the first areas settled by Maori in New Zealand. Tauranga was blessed with a mild climate and a range of available resources, access to these resources ensured that Maori thrived in the area:
... The entire Tauranga district, estimated at 290,000 acres, was included in the confiscation proclamation of 1865. Of this area, the Crown retained a
50,000 acre area known as the 'confiscated block'. Though the land outside the 50,000 acre block was returned to Maori between 1865 and 1886, most of this land was quickly lost from Maori ownership as well. The Crown purchased some 90,000 acres within the district known as the Te Puna- Katikati block and a further area of 'returned land', estimated at 75,000 acres, was sold to the Crown or private purchasers. By 1886, Tauranga Maori retained only an estimated 75,000 acres of relatively poor quality land and this was no longer held under customary title.
...
... The land loss of Tauranga Maori in the late nineteenth century was considerable. Added to the effects of the raupatu, that loss forms a critical backdrop to understand the impact of Crown policies and practices in the century or so that followed.
... As a consequence of the Raupatu and its aftermath, Maori communities in the Tauranga area were confined to reserves on the coastline around Tauranga Moana; to a handful of blocks of land around the eastern end of the harbour and to some slightly larger blocks in the hill country running into the Kaimai ranges.
[17] Maori therefore had to adapt and became reliant on the sea and rivers to sustain themselves in the area:
... During the early intercourse of Europeans with New Zealand, Tauranga became of much consequence as a port.
[18] This was due to the location of Tauranga between Auckland and Wellington and the ability for a safe, all-weather, deep water berth to be utilised:
... by the 1880s, Maori and the Crown had assumed distinctly contrary positions as to who rightfully possessed and controlled the foreshore and seabed - positions that remain today. In Tauranga, these differences emerged over the question of who possessed and controlled Tauranga Moana. In practice, the Crown settled this question by passing a series of Acts that vested authority in bodies entirely composed of Pakeha settlers. With these Acts, possession and authority over Tauranga Moana passed from Tauranga Maori, without consultation ... Their Harbour was under the direct jurisdiction of the Tauranga Harbour Board, and its control was backed by the full authority of the Crown. Henceforth, Tauranga Maori would struggle to assert their Treaty rights to participate in the management of the harbour before the Crown; the question of ownership was foreclosed.
Therefore,
... Tauranga Maori lost the great majority of their ancestral lands. Even so, they [did not and] have not lost their association with those many places and environments, which remain the source of their cultural identity.
... The development of the Port had several components; the construction of the Mount Maunganui deep-water wharf, the construction of the Sulphur Point container terminal, the dredging of shipping channels, and the harbour bridge.
[19] The drive to develop a deep-water international port within Tauranga Harbour gathered momentum in the mid-twentieth century as the region's economy boomed, especially the forestry industry.
[20] From 1915, there was a burst of activity around the harbour. The government was at the forefront of this activity, but withdrew when it became clear that dredging was pointless because the channel filled with silt as fast as it cleared. The Harbour Board took over, and in 1923, the Stella Passage was dredged and the Cutter Channel deepened.
[21] In 1925, the Harbour Board received government approval for a concrete wharf to replace the Mount Maunganui railway wharf that had fallen into disrepair. During this time, there were several reclamations in the Sulphur Point area.
... The next round of major harbour works, starting in 1968 focused on Sulphur Point. The decision to reclaim land here was crucial; it created the twin port structure (Sulphur Point and Mount Maunganui) and dictated transport networks.
[22] The actual development of the Port was extraordinarily rapid. The Government was to design and construct the port, and pass control over to the Tauranga Harbour Board after the initial phases were completed. An official's committee called for the work to be declared in the national interest
so that construction could be accelerated. The fast tracking of the construction may have contributed to potential adverse effects being overlooked; this resulted in:
... Siltation caused by port construction, transport infrastructure, and agricultural development ... detrimentally affect[ing] the ecology of the harbour and its fisheries.
... Estuaries, rivers, streams, and wetlands at the harbour edge - all areas providing rich and easily accessible food supplies for Tauranga Maori – have been impacted ...,
most notably the once vibrant pipi beds.
[23] These developments were recorded as being in the national interest but seemed to overlook Maoris' beliefs and as such:
... the port and airport developments resulted in much of their whareroa land being lost to public works, with only limited compensation - it is relevant to note here that the Crown in fact took more land than it needed and sold off the excess for considerable profit.
[24] These sales did little to strengthen the belief that the land was needed for the national interest and created a feeling of distrust and animosity between iwi and the Port authorities, which is still evident today:
The expansion of Tauranga City to the east was done without consideration for the history of raupatu in the region: the eastern end of the harbour was precisely where much of the remaining Maori land was situated. Maori were not involved in key public works and planning decisions in Tauranga, and their interests and concerns were not protected. The result was that, from 1886 to 2006, at least 4961 acres of Maori land was taken for public works in Tauranga.
[25] Reclamation has affected more than the Harbour itself, it has impacted on the expression of Maori customs and beliefs as well, including their right to protect their lands.
[26] Not only were the fertile lands that Maori had once possessed taken from them, but during the period from 1886-1991, Tauranga Harbour and other waterways were polluted by numerous discharges, including sewage and stormwater outfalls, septic tank seepage, urban runoff, rubbish tip seepage, agricultural runoff and industrial wastes. As a result bacterial contamination of rivers and streams was a serious problem in Tauranga by the mid-1990s.
[27] Maori have always opposed such pollution as any harmful discharge into the harbour, or into the key waterways such as the Wairoa, is culturally unacceptable. This had a lasting effect on Tauranga Maori unable to sustain their traditional way of life, and unable to utilise their taonga as a base for economic development. Effectively:
Maori customary or aboriginal title to rivers and waterways in Tauranga has been displaced through a combination of the raupatu and the application of introduced law in New Zealand.
[28] As is evident from the history of Tauranga, development of the Port is always going to create disagreement and resentment between parties and this appeal is not going to solve that. As the Waitangi Tribunal has stated:
... We note that Tauranga Maori retain ownership of ancestral lands with water frontage at numerous places around Tauranga Harbour. However, it is not our role to determine as a matter of law whether these lands include the foreshore or the seabed ...
This Court notes the Tribunal's finding that,
... in usurping ownership over Tauranga Moana and presuming to delegate ownership to other entities, the Crown has committed a number of Treaty breaches.
[29] This Court cannot undo past wrongs but it can to a limited extent mitigate the damage caused through conditions that address cumulative effects.
[30] The Waitangi Tribunal recommended that:
... Where the wider public also have a strong interest in taonga, as is the case with the harbour, significant waterways, and the native forests of Kaimai Range, we recommend that the Crown explore possibilities for joint management between local government and Maori.
We are also concerned at the evidence of resource loss and environmental degradation, particularly in relation to the harbour and waterways. We therefore recommend that the Crown, in conjunction with the tangata whenua, investigate the possibilities for remedial action, and that the Crown contributes towards to the costs of any projects identified.
[31] This should be the focus and main aspiration for the future running and development of the Port of Tauranga. We can see no reason in principle, why local government and the Port Company cannot partner in restoration projects. These benefit all users including tangata whenua.
Cultural effects
[19] The Court, again eloquently and sensitively, set out and took note of the cultural landscape with which it was dealing, particularly the status of Mauao and Te Awanui, the harbour. Other sites included the pipi beds and Panepane Point. It detailed the evidence it had heard from various tangata whenua about the longstanding and ongoing links they had with kaimoana areas:
[174] Mauao also known as Maunganui, stands as a sentinel looking out over the Pacific ocean, Te Moana a Toi. We were told Mauao was a victim of unrequited love, so he asked to be pulled by the patupaiarehe (fairy people) during the night from the Hautere forest to the sea so he could drown himself. At dawn he was caught by the sun before he could accomplish his task, thus the name Mauao which means caught by the dawn. He has since forever stood tall at the entrance of the harbour. Mr Awanuiarangi Black
explained that the ancient name Maunganui, was given by Tamateaarikinui of the Takitimu canoe. He named it after the ancient mountain in Hawaiki climbed by the God Tane on his quest in search of nga kete wananga (the ancient baskets of knowledge).
[175] Mauao or Maunganui is associated with several ancestors from Hawaiki who undertook rituals and ceremonies or built alters (tuahu) on their arrival in this area so that settlement could take place. Thus it has historical importance and a deep cultural and spiritual significance which, we were advised, extends from the ocean floor (including Tanea Shelf) to its peak.
[176] Te Awanui (big river) is the name of the channel or body of water that runs from the mouth of the Waimapu River to the base ofMauao. This was the traditional path that was created when Mauao was moved to the sea. The name is also used to refer to the entire Tauranga Harbour. Mr Charlie Tawhiao stressed that Te Awanui is important in terms of the tribes' identities. According to him they discuss it as an identifier and as an integral part of their territory, inextricably linked to their health and welfare.
[177] Mr Hauata Palmer, a kaumatua of Ngai Te Rangi, advised that Mauao is the sacred mountain for all tangata whenua of Tauranga Moana who are themselves linked by whakapapa (genealogy). It is, he claimed, the most sacred landmark in the Tauranga area and has significant historical value for us. In Mr Tuanau's opinion, it is the most sacrosanct place of all Tauranga Moana. Mr Morehu Ngatoko Rahipere noted the mountain holds much history and that there were battles fought on the mountain. Thus it is considered a waahi tapu. Mauao Historic Reserve and Mauao Recreation Reserve are registered waahi tapu on the New Zealand Historic Places Trust Register of Historic Places, Historic Areas, Waahi Tapu and Waahi Tapu Areas.
[178] Te Awanui is considered a symbol of tribal identity, mana and rangatiratanga. It is this harbour that physically links all the tribes of Tauranga to each other, as demonstrated to us through the production and translation by Mr Awanuiarangi Black of the waiata (song) Tu Mokemoke.
...
[183] In practical terms the stretch of Te Awanui affected by the Port of Tauranga's application to dredge along the shipping channel was used, and continues to be used, as a customary harvesting area, as a waka route and as a place to·find rongoa (health remedies).
[184] We were told that the kai of a region reflects the mana of the people of that region. Te Awanui was and remains a major food source for the Tauranga tribes, jealously guarded and protected. The previous abundance of the fishery in the harbour is well documented and an example from the evidence relates to Taiaho, another Ngai Te Rangi chief, who once said of Te Awanui, Kaore koe e mate kai ana, anei taku mara kai which when translated means, You will never be hungry for here is my food garden. The entire area surrounding Mauao has also been an important customary food gathering site.
[185] Spiritually, Mauao and Te Awanui remain for the tribes, the passage way to Hawaiki. It is through these waters that the spirits of the dead leave on the outgoing current, past Panepane Point on the southern end of Matakana Island, out into the Bay of Plenty, to Tuhua and then on to the ancient homeland - Hawaiki. Evidence of this pathway taken by the ancestral spirits of the appellants was provided by Reon Roger Tuanu and Mr Matiu Dickson through waiata and prose.
...
[190] Ms Antoine Coffin referred to traditions associated with Panepane Point (or Te Panepane o Raumati). These traditions concern the beheading of Raumati who, according to her account, was responsible for the burning of the Te Arawa Waka. In seeking revenge, Hatupatu of Te Arawa with his brothers fought Raumati and his kin at the base of Mauao and overcame him after facing off towards Panepane Point. Mr Matiu Dickson referred to a waiata that commemorates the sacred nature of this site and likens the sounds of the tides to the falling of tears for those buried there. Panepane, we were told by Ms Coffin, is still revered today by Matakana Islanders and descendents of Raumati living at Wairoa-Bethlehem.
[20] Counsel were agreed that, so far as iwi in the region were concerned, the spiritual passage way to Hawaiiki was not (as is popularly believed to be) from Cape Reinga but instead across Te Awanui past Panepane Point and out into the Bay of Plenty to Tuhua (Mayor Island).
Fisheries
[21] Turning to fisheries the Court noted:
[186] The entire area known as Te Paritaha o Te Awanui and the Number 2
Reach of the shipping channel are considered an important spawning area and nursery for juvenile pipi. The evidence was that from ancient times to
the present, it has been considered an important fishery for the tribes and
their identity and their way of life. The pipi are considered a taonga species, with evidence that the appellants consider that they have whakapapa
(genealogy) linking them directly to the environment, the sand, the sea and
to the pipi. Mr Olsen explained this Maori world view:
22 ... as a holistic framework in which all things both animate and inanimate are connected through a web of kinship. Thus all things are deemed to have a life force/mauri. It is the principle of mauri that determines environmental and cultural well-being, for Maori the protection of mauri (spiritual integrity) is paramount.
...
[189] We also heard evidence that kina has been harvested at the entrance to the Harbour where the species is, we were told, abundant at around 20 feet down. Mr Graeme Borrell believes these beds of kina are the main breeding
stocks for that species. There was limited scientific evidence on this point, however. What we can be certain of is that mussels are collected at the entrance of the harbour and on rocks at the foot of Mauao along with kina, paua and koura.
...
[196] The Te Awanui Tauranga Harbour Iwi Management Plan (2008) notes that kaimoana was gathered from these waters on a seasonal basis. The authors reflect on the use of Te Awanui as a fishery noting that seasonal harvesting was and remains a feature of the traditional and contemporary way of life of the tribes of Tauranga Moana. The evidence we heard was that people gathered and still gather kaimoana such as kina, koura (crayfish), paua, pipi, tuangi, papaka (crabs), kukuroa (horse mussels), titiko and they fished and continue to fish the species to be found in the harbour and its oceanic surrounds.
[197] We received evidence demonstrating such use from ancient times, during the 20th Century and continuing into the present. In particular we note the report of Robert A. McClean, produced by Te Timatanga Neil Te Kani, recording the importance of these fisheries for sustaining Maori living in the area. In addition, the importance of Te Awanui as a fishery was addressed by several witnesses...
[198] After referring to the continuing ability to gather kaimoana and to fish, nearly all the witnesses for the appellants complained about the impacts of urbanisation and port and industrial development on Te Awanui. These changes, aggravated by land use changes within the catchment, have led in their view to the degradation and diminishment of Te Awanui and its fisheries. There has also been a discernible decline in shell-fish and fish stocks, with a large number of witnesses concerned that the abundance of kaimoana previously associated with Tauranga Moana is no more.
[199] A summary of how these adverse effects impact upon the appellants comes from the Te Awanui Tauranga Harbour Iwi Management Plan (2008) where the impacts of any destruction of cultural sites was described as follows:
5.1.1 Pressures on Significant Cultural Sites
Significant cultural sites form an integral part of Maori life. These areas can include kai gathering areas, mahinga mataitai, wahi tapu, wahi taonga and wahi tupuna. They give Maori reference points for direction and growth and ensure stable cultural development. Removal or destruction of these sites are a major issue for whanau, hapu and iwi and threatens the integrity of our tribal identity and growth...
[22] The Court was alert to local iwi being the kaitiaki of the marine areas of their rohe moana, and was also alert to the mataitai through which the harbour entrance channel passed:
[201] As kaitiaki, the Tauranga Moana tribes aspire to co-manage their rohe moana (traditional sea domain). This area includes Te Awanui. We
were told that they attempt to do so in accordance with their tikanga underpinned by the values of manakitanga (hospitality), whakawhanaungatanga (cause to establish familial relationships), whakapapa (genealogy) and aroha (love or respect). In giving expression to these values they have established or worked with the Ministry of Fisheries (now Ministry of Agriculture and Fisheries) to establish:
[a] The Tauranga Moana Iwi Customary Fisheries Charitable Trust with two representatives from each of the three iwi and invited representatives, one representative from Tuhua and one from Te Puni Kokiri. The Trust was represented before us by the Chairman, Mr Penetaka Brian Dickson. The Trust aims to:
[i] provide for the education of fishing and environmental management based on Maori cultural values;
[ii] produce educational resource material on the Maori relationship with Papatuanuku and Tangaroa;
[iii] promote research into Maori cultural and scientific tikanga; and
[iv] educate and promote the culture and history of Maori customary environmental and fisheries tikanga.
It provided a cultural impact assessment on the proposed channel deepening, widening and dredging.
[b] Tangata kaitiaki positions appointed under the Fisheries (Kaimoana Customary Fishing) Regulations 1998 so as, we were told, to uphold the mana over their customary fishing rights and resources in their rohe moana. Tangata kaitiaki have authority to grant applications for customary harvesting; and
[c] A mataitai under the Fisheries (Kaimoana Customary Fishing) Regulations 1998 was approved by Minister of Fisheries and is known as Te Maunga o Mauao Mataitai Reserve. A letter dated 25 August 2008 from the Minister declaring the establishment of the reserve was filed. In addition, notice of the establishment of the reserve was published in the New Zealand Gazette on 28 August 2008, effective from 25 September 2008. This was also produced for these proceedings by Mr Penetaka Brian Dickson, who aside from being the Chair of the Tauranga Moana Iwi Customary Fisheries Trust, is also Chair of the Te Maunga o Mauao Mataitai Reserve. According to Mr Dickson, the area was chosen because of its historical and traditional significance in providing sustenance to the tribes. The Reserve covers an area of approximately 6 km which includes the waters surrounding Mauao, Moturiki and Motuotau Islands and part of the Tauranga Harbour and thus
will be directly affected by the proposed consents. Commercial fishing is excluded from this area and recreational fishing restricted for certain species, such as mussels or kutae. The Reserve is an inshore area where, we were advised, paua, kina, kutae, pupu and koura can be gathered. The well known areas are Te Paritaha o Te Awanui for pipi and tuangi and Mauao, Moturiki Island and Motuotau for kina, paua, kutae and koura.
The Court’s conclusions on cultural effects
[23] The Court correctly and succinctly summarised the cultural evidence that it received and the concerns expressed as follows:
[228] The undisputed evidence before the Court is that Mauao and Te Awanui and their surrounds are iconic lands and waters of great historic and cultural significance to the tribes of Tauranga Moana. We also understand that their relationship with these features including Te Paritaha o te Awanui, Panepane Point and Mauao including Tanea Shelf, is an ancestral and historical one that extends back to settling of Aotearoa by their ancestors from Hawaiki, and for Ngai Te Rangi after arriving in the Tauranga region from the East Coast.
[229] We note that the appellants consider that Mauao and Te Awanui are indivisible and inextricably linked thus any effect on any aspect of these features, will affect the whole. From their perspective, there are cultural effects that flow from dredging, deepening and widening the shipping channel that will impact on all of Tauranga Moana. Thus they have identified a number of cultural effects that relate to the entire harbour and its oceanic surrounds.
[230] However, and based on all the evidence, we consider it is the appellants' concerns about the impacts of the dredging on those parts of Te Awanui relating to Te Paritaha o te Awanui, the ebb tide delta and Panepane Point, and Mauao at Tanea Shelf, including the associated fisheries and habitats that are directly relevant to the appeals. We also consider their concerns about the impacts on the management of customary fisheries by local tribal tangata kaitiaki and their management of Te Maunga o Mauao Mataitai Reserve established under the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and the Fisheries (Kaimoana Customary Fishing) Regulations 1998.
[231] The mataitai, Mr Koning submitted, has its own legal status as an expression of the Crown's continuing treaty obligations [Environment Court’s emphasis] to Tauranga Moana iwi. We agree with this position and we note that section 10 of the Treaty of Waitangi (Fishing Claims) Settlement Act 1992 and the Fisheries (Kaimoana Customary Fishing) Regulations 1998 record that the Crown agreed in 1992 to recognise and provide for customary food gathering and the special relationship between tangata whenua and places of importance for customary food gathering (including Tauranga ika and mahinga mataitai). It was established after the Minister of Fisheries was satisfied, inter alia, that there was a special
relationship between tangata whenua and the proposed mataitai reserve. In addition he needed to be satisfied that the mataitai reserve was an identified traditional fishing ground and of a size appropriate to effective management by tangata whenua. The Mauao Mataitai Reserve is managed in practice by tangata kaitiaki, and no person may engage in commercial fishing in the reserve.
[232] We consider that the law on mataitai reserves clearly reflects the interests of the Crown and Maori to provide for customary food gathering and the special relationship between tangata whenua and places of customary food gathering importance such as Te Paritaha o te Awanui, Mauao, and the general area within the shipping channel captured within the boundary of the reserve. Thus we reject Ms Hamm's argument that the reserve is predominantly about addressing the sustainability of the fishing resource in areas of significance to iwi for customary food gathering. Rather, the mataitai reserve was established to recognise and provide for the special relationship tangata whenua have with this area.
[233] We conclude as much because of the emphasis in the legislation on the relationship with such places. Thus, the impact of the proposal to dredge, widen and deepen the channel on the mataitai reserve is directly relevant to our Part 2 analysis, and we consider that there will be significant adverse cultural effects on the exercise of the kaitiakitanga and rangatiratanga of the appellants as a result. These impacts we have provided for in our proposed conditions.
Environment Court decision
[24] The Environment Court essentially upheld the Commissioners’ decision. It recommended the Minister grant consent. The consent was subject to various proposed draft conditions which do not, for the purposes of this appeal, need to be detailed.
[25] Significantly the conditions (which had been the subject of consultation between the parties) amended and modified the consent. One such amendment was that alterations to Tanea Shelf should not proceed. Notice of any alterations to the Shelf was to be delayed for at least five years with two further years set aside for discussion and consultation, peer review, and investigation. Once works on Tanea Shelf began, PTL was to pay $250,000 (by five annual tranches of $50,000) to the trustees of the Mauao Reserve.
[26] The conditions included the establishment of a new trust to mitigate adverse effects on cultural and spiritual values; “renourishment” of the beach adjacent to
Whareroa marae; the establishment of a tangata whenua Reference Group; and the establishment of a Te Awanui scholarship programme.
[27] At an early stage of the hearing, the Environment Court had been critical of the various assumptions made by PTL and an inadequate degree of consultation with the tangata whenua. A six month adjournment and consultation between the parties clearly improved matters. Nonetheless the Court added the following under the heading “Final Comment”:
[313] We cannot leave this case without commentary on the proposition that iwi and hapu had not engaged constructively in resolving this appeal.
[314] We recognise the deep insult to the mana of some kaumatua from the way in which this application came to their notice. This was clearly seen as hurtful and disrespecting of their rangatiratanga. Seen from their perspective, it was yet another slap in the history of offence, rehearsed so recently before the Waitangi Tribunal. The Port appears to have been oblivious to the effect and interpretation of their actions when applying for their consents. The Port saw itself as being fair in delaying the Council hearing and attempting to consult. We accept that by the end of the case the Port had a better understanding of how it should be forging a relationship with tangata whenua.
[315] This case highlights to us the yawning chasm in cultural insight sometimes displayed by major infrastructural companies. The Port should have a Cultural Liaison Officer, or such persons, on retainer. This position would never have arisen if the Port had sought early cultural advice. Mr Mikaere was retained after the Council decision and prior to the Court hearing. That was far too late.
[316] For our part we have concluded that the Regional Coastal Environment Plan contemplates a major infrastructural applicant preparing and filing an application after extensive discussion with tangata whenua, and probably, with some level of understanding as to how on-going issues relating to Te Awanui should be addressed. Some 20 years after the enactment of the Resource Management Act, it is surprising that an infrastructural company of the size of the Port would not have been aware of its obligations in terms of the Regional Coastal Environment Plan, the New Zealand Coastal Policy Statement 2010 and the Act.
[317] During the course of this hearing, the Port has done a great deal to try and address this situation. However, we feel obliged to note that further examples of applications made without proper approach and consideration of the requirements of the relevant national and regional documents could lead to refusals of applications for consent.
[318] Put simply, a publicly listed company working in a highly sensitive area identified in all relevant national and regional documents, cannot purport that it has no obligation to consider tangata whenua issues or consult with the relevant parties. This is not the case of a small business having no
specific provisions and regional plans relating to it. This is the case of a major infrastructural company which has been dealing with these issues constantly for the last 50 to 60 years since its inception, and prior to that, the Harbour Board. To pretend that these matters are not being addressed through the Waitangi Tribunal (and having repercussions to on-going operations), is not in our view a reasonable position to take.
[28] The appellant challenges the Environment Court’s decision.
Discussion of appeal issues
[29] An appeal to this Court from a decision of the Environment Court is governed by s 299 of the Act, which provides:
299 Appeal to High Court on question of law
(1) A party to a proceeding before the Environment Court under this Act or any other enactment may appeal on a question of law to the High Court against any decision, report, or recommendation of the Environment Court made in the proceeding.
...
It is clearly established that, for an appeal to succeed, an error of law must be established which materially affected the Environment Court’s judgment.3 It is not sufficient to dress up factual matters or conclusions flowing from evaluative decisions as errors of law.4 Challenges to facts and evaluative conclusions cannot masquerade as errors of law.
[30] The appellant’s amended notice of appeal specified the following errors of
law arising out of the Environment Court’s consents:
(a) The Court failed properly to consider whether the consent conditions would adequately recognise and provide for the relationship between the appellant and Te Awanui and Mauao.
(b) The Court made findings “contrary to the overwhelming weight of
cultural evidence” without providing reasons.
3 Countdown Properties (Northlands) Limited v Dunedin City Council (1994) 18 ELRNZ 150 (HC) at
157-158.
4 See The Friends of Pakiri Beach v Auckland Regional Council [2009] NZHC 1594; [2009] NZRMA 285 at [19] and [20].
(c) The Court failed to have particular regard to the Mataitai Reserve (Te Maunga o Mauo Mataitai Reserve) as an expression of the Crown’s continuing Treaty obligations to the appellant.
[31] Ms Kapua’s overarching submission for the appellant was that the Court’s conclusions and findings on the cultural effects of the consents went beyond what it reasonably could have found. Section 5(2) set out the statute’s “sustainable management purpose”, which purpose specifically included provision for the cultural wellbeing of people and communities. Cultural wellbeing should not be read down.
[32] Furthermore s 6(e) prescribed the relationship of Maori, their culture and tradition with ancestral lands, water, and sites as a matter of national importance. Section 6(e), submitted counsel, was designed to emphasise the special nature of the relationship of Maori with the adversely affected environment. This is applicable to the effect of the consents on Te Awanui, Mauao and the Mataitai Reserve. The obligation of the Court under s 6, so far as a special relationship was concerned, was to “recognise and provide” for it.
[33] Similar considerations apply to the appellant’s guardianship role and right of kaitiakitanga, defined in s 2. Section 7(a) of the Act specifically provided that the Court must have particular regard to kaitiakitanga. Although the Court had accepted the kaitiaki status of the appellant, it did not appropriately address and consider this in its decision.
[34] Similarly, although acknowledging and referring to s 8, the Court had given insufficient weight to the principles of the Treaty which it had to “take into account”. Particularly was this the case in respect of the Mataitai Reserve. The dredging would interfere to some extent with pipi beds. A part of the Mataitai Reserve (albeit a small part) would be the recipient of discarded dredging material. Significantly the Mataitai Reserve was the direct result of a Treaty settlement. There was thus, consistent with Treaty principles, a heightened obligation to protect it.
[35] Ms Kaupua accepted the Court was obliged, in reaching its decision, to balance the matters specified in Part 2 of the Act.5 She referred to Lord Cooke’s speech in McGuire v Hastings District Council:6
[21] Section 5(1) of the RMA declares that the purpose of the Act is to promote the sustainable management of natural and physical resources. But this does not mean that the Act is concerned only with economic considerations. Far from that, it contains many provisions about the protection of the environment, social and cultural wellbeing, heritage sites, and similar matters. The Act has a single broad purpose. Nonetheless, in achieving it, all the authorities concerned are bound by certain requirements and these include particular sensitivity to Maori issues. By s 6, in achieving the purpose of the 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 various matters of national importance, including “(e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu [sacred places], and other taonga [treasures]”. By s 7 particular regard is to be had to a list of environmental factors, beginning with “(a) Kaitiakitanga [a defined term which may be summarised as guardianship of resources by the Maori people of the area]”. By s 8 the principles of the Treaty of Waitangi are to be taken into account. These are strong directions, to be borne in mind at every stage of the planning process. The Treaty of Waitangi guaranteed Maori the full, exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties which they desired to retain. While, as already mentioned, this cannot exclude compulsory acquisition (with proper compensation) for necessary public purposes, it and the other statutory provisions quoted do mean that special regard to Maori interests and values is required in such policy decisions as determining the routes of roads. Thus, for instance, Their Lordships think that if an alternative route not significantly affecting Maori land which the owners desire to retain were reasonably acceptable, even if not ideal, it would accord with the spirit of the legislation to prefer that route. So, too, if there were no pressing need for a new route to link with the motorway because other access was reasonably available.
[36] Counsel laid emphasis on Lord Cooke’s comment that Part 2 comprised
“strong directions, to be borne in mind at every stage of the planning process”.
[37] Counsel further submitted the Court had erred by concluding that the regional and economic significance of widening and deepening the channel to the Port outweighed the adverse cultural effects which would flow. Section 5(2)(c) obliged the Court to avoid adverse effects. This the Court had failed to do. Instead of using as its starting point that the Court could decline the consent applications and do
nothing, the Court had instead adopted the approach of “how to justify” the consents.
5 Supra [14].
6 McGuire v Hastings District Council [2002] 2 NZLR 577 (PC).
Importantly the Court’s approach had ignored the special status of the Mataitai Reserve as a Treaty settlement. It had also ignored the special statutory recognition given to Mauao by the Mauao Historical Reserve Vesting Act 2008.
[38] Finally, Ms Kapua challenged the weight given by the Court to PTL’s expert cultural witness, Mr Mikaere. Counsel submitted Mr Mikaere should not have been regarded as an expert because he had no mandate to speak for the tangata whenua.
[39] Mr Koning, who acted for Te Runanga O Ngai Te Rangi Iwi Trust supported the appellant’s submissions.7 He submitted, and there is no challenge to this, the Mataitai Reserve was the product of a Treaty settlement. The Crown’s plans in 1986 to introduce a quota management system to regulate commercial fishing led to litigation instigated by Maori iwi. A partial settlement between Maori and the Crown was achieved by the Maori Fisheries Act in 1989 which provided for 10 per cent of quota to be transferred to the Maori Fisheries Commission. Fortuitously the
owners of Sealord Products Limited, which held a significant proportion of quota, decided to sell the company. Further negotiations between the Crown and Maori, designed to discuss and settle outstanding claims and Treaty grievances relating to fisheries, led in turn to a September 1992 Deed of Settlement which is implemented by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.
[40] Pursuant to the settlement, the Fisheries (Kaimoana Customary Fishing) Regulations 1998 were promulgated under s 186 of the Fisheries Act 1996. Section
186 empowered the Governor-General by Order in Council to make regulations:
Recognising and providing for customary food gathering by Maori and the special relationship between tangata whenua and those places which are of customary food gathering importance (including tauranga ika and mahinga mataitai) to the extent that such food gathering is neither commercial in any way nor for pecuniary gain or trade.
[41] The regulations provide a process whereby tangata whenua can apply to the
Minister of Fisheries to establish customary food gathering areas and appointing tangita kaitiaki/tiaki. Tauranga iwi resolved in 2002 to make the appropriate
7 Te Runanga O Ngai Te Rangi Iwi Trust (TRONIT) was a s 301 party. Ngati Ruahine, the appellant, is a hapu of Ngai Te Ranginui. TRONIT was established in 2007 and represents 10 hapu of Ngai Te Rangi and is mandated to represent Ngai Te Rangi in Treaty settlements, Resource Management, and Fisheries issues.
application to the Minister of Fisheries. As a result tangata kaitiaki/tiaki for Tauranga moana were established in October 2004. The Mataitai Reserve, affected by PTL’s consents, was gazetted on 28 August 2008 and came into effect the next month.
[42] Witnesses called by TRONIT in the Environment Court stated that PTL’s proposal to dredge through the Mataitai Reserve “devalues the fishing settlement and our Treaty rights”. The fisheries settlement and Treaty rights would not have been respected if a resource consent was granted.
[43] In essence, TRONIT’s position was that the Mataitai Reserve existed as the outcome of a statutory settlement of Ngai Te Rangi’s historic fisheries claims against the Crown.8
[44] For the purposes of ss 6(e) and 7, Mr Koning submitted there was a difference between a tauranga ika (fishing place) which had not been designated as a Mataitai Reserve, and the designated Mataitai Reserve itself. Section 7 kaitiakitanga was highly relevant to both, but additionally the Mataitai Reserve had Treaty settlement status.
[45] Mr Koning submitted the Environment Court failed to make a finding that the Mataitai Reserve was a product of a Treaty settlement between the Crown and the iwi of Tauranga Moana. In so doing, the Court failed to recognise the importance of s 8 and had erred.
[46] I do not accept that submission. At [201][c] of its judgment,9 the Court set out the status of the Mataitai Reserve under the 1998 regulations and correctly identified its scope and significance for kaimoana. And at [231]10 the Court correctly recorded Mr Koning’s submission before it; referred to the 1992 settlement; agreed with counsel that the Mataitai Reserve had its own legal status as an expression of the Crown’s continuing Treaty obligations; and rejected the submission
of PTL’s counsel that the Mataitai Reserve was predominantly an issue concerning
8 Professor Boast gave evidence to the Environment Court to that effect.
9 Supra [22].
10 Supra [23].
fishing sustainability.11 The Court did not make a “finding” of the type Mr Koning submitted it should, but in the circumstances I do not regard that as either significant or an error of law. Clearly the Court was alert to the Mataitai Reserve and the circumstances surrounding its creation.
[47] Mr Koning referred to the effects of dredging on the Mataitai Reserve, which would involve the removal of approximately 200 metres of the harbour to create the turning circle at the entrance to the Otumoetai Channel and the removal of a 100 metre strip also from Te Paritaha o Te Awanui for the inner channel.
[48] Counsel considered that although the Court had referred to Treaty principles, there was no reference by it to any relevant case law. Counsel cited the Court of Appeal’s judgment of New Zealand Maori Council v Attorney-General.12 He laid emphasis on the dictum of Cooke P to the effect that Treaty principles require Pakeha and Maori, as Treaty partners, to act towards each other reasonably and with the utmost good faith, that duty being infinitely more than a formality.13 He also emphasised a dictum of Richardson J (relevant to the Mataitai Reserve being the product of a Treaty settlement) to the effect that where there was focus on the role of Crown and Government conduct, emphasis on the honour of the Crown was important, the Treaty being a positive force in the life of the nation.14
[49] All counsel referred to a portion of the Privy Council’s judgment New
Zealand Maori Council v Attorney-General:15
Foremost among those “principles” are the obligations which the Crown undertook of protecting and preserving Maori Property including the Maori language as part of taonga, in return for being recognised as the legitimate government of the whole nation by Maori.... It is therefore accepted by both parties that the Crown in carrying out its obligations is not required in protecting taonga to go beyond taking such action as is reasonable in the prevailing circumstances. While the obligation of the Crown is constant, the protective steps which it is reasonable for the Crown to take change depending on the situation which exists at any particular time.
11 At [232].
12 New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641.
13 At 667.
14 At 682.
15 New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 at 517.
[50] Thus, submitted Mr Koning, in the particular circumstances of PTL’s consent, the relevant Treaty principle to apply was that of the Crown’s duty actively to protect the Mataitai Reserve to the fullest possible extent.
[51] Additionally Mr Koning submitted that the Court wrongly took into account the Treaty principle of mutual benefit and reciprocity. That principle had no application in the current circumstances where the Crown had an ongoing statutory obligation to protect the Mataitai Reserve.
[52] The grant of the consents would irreparably damage the Mataitai Reserve by permitting dredging and the dumping of dredged material. Additionally boulders would be removed (a reference to the Tanea Shelf). Mr Koning submitted to similar effect with regard to kaitiakitanga and s 7(a).
[53] The Attorney-General, who properly sought and was granted leave to intervene, made submissions in support of the Environment Court’s judgment. Because the Attorney-General was not involved in the Environment Court hearing, and particularly because cultural and Treaty concerns lie at the heart of this appeal, it is appropriate briefly to record the helpful submissions advanced by Mr McCarthy.
[54] Mr McCarthy identified three Treaty principles from the authorities which had been cited. The first was one of partnership. The second principle was one of active protection whereby the Crown has a positive duty to protect Maori property interests and taonga. The third principle was that past wrongs gave rise to a right of redress.16 Mr McCarthy observed that the Environment Court had, in [240] of its judgment, reflected the first two principles but not the third. This was quite simply because there was no past wrong before the Court which it could redress.
[55] Turning to Part 2 of the Act, Mr McCarthy submitted that although the Environment Court was obliged to weigh the relevant factors to which that Part applied, the tangata whenua did not have a veto right. Sections 6, 7, and 8 of the Act were all prefaced with the words “in achieving the purpose of this Act”. That purpose is found in s 5. In carrying out the purpose of the Act to promote
sustainable management of natural and physical resources, a Court had to reach a balanced result, having considered and weighed relevant Part 2 factors. I accept this submission. The job of the Environment Court involves exercising a broad evaluative judgment on whether a proposal promotes sustainable management of natural and physical resources. The judgment involves weighing competing considerations.
[56] This weighing process, leading to a balanced judgment, had been recognised by the Court of Appeal in Watercare Services Limited v Minhinnick,17 where the central issue was an application for an enforcement order designed to prevent a sewer pipeline being laid through an archaeological site which included wahi tapu. The Court said:18
The Court must weigh all the relevant competing considerations and ultimately make a value judgment on behalf of the community as a whole. Such Maori dimension as arises will be important but not decisive even if the subject-matter is seen as involving Maori issues. Those issues will usually, as here, intersect with other issues such as health and safety: compare s 5(2) and its definition of sustainable management. Cultural well-being, while one of the aspects of s 5, is accompanied by social and economic well-being. While the Maori dimension, whether arising under s 6(e) or otherwise, calls for close and careful consideration, other matters may in the end be found to be more cogent when the Court, as the representative of New Zealand society as a whole, decides whether the subject-matter is offensive or objectionable under s 314. In the end a balanced judgment has to be made.
[57] On the issue of the Mataitai Reserve Mr McCarthy accepted, in terms of s 6(e), that the mataitai was a matter of national importance and a place with which tangata whenua had a special relationship. He submitted, however, there is nothing in the relevant regulations, or in the Act, which gave the Mataitai Reserve greater significance than other places with which Maori had a recognised relationship under s 6(e). Mr McCarthy submitted there is no legal principle which required the Court to haul in the Treaty to give the Mataitai Reserve greater significance than other places to which s 6(e) applied.
[58] The Minister’s for Fisheries decision to create the Mataitai Reserve did not,
in Mr McCarthy’s submission, turn the special s 6(e) relationship “into a single
17 Watercare Services Limited v Minhinnick [1998] 1 NZLR 294 (CA).
18 At 305.
paramount factor that trumps any other competing matter referred to in Part 2....” Any such interpretation was irreconcilable with the s 5 sustainable management purpose which was designed to assist people in communities to provide for their social, economic, and cultural wellbeing, and for their health and safety.
[59] In general terms, submitted Mr McCarthy, ss 6 and 7 of the Act gave effect (through their enactment) to the Crown’s Treaty obligations to protect Maori interests in a planning context.
[60] In large measure, I uphold Mr McCarthy’s submissions which were carefully
considered and balanced.
Analysis
[61] In their written submissions, and indeed during the appeal hearing, Ms Hamm for PTL and Mr Cooney for Bay of Plenty Regional Council suggested that counsel for the appellant and for TRONIT were effectively claiming a veto right for the groups they represented. Mr McCarthy, as is apparent in his submission which I have outlined at [55] stressed that relevant Part 2 interests could not veto or trump the purpose of the Act.
[62] In fairness to Ms Kapua and Mr Koning, they were not claiming that ss 6(e),
7, or 8 matters conferred a right of veto. Their attack on the Environment Court’s judgment focused on matters of weight and balance. Nonetheless, Ms Hamm submitted that if an excessively elevated or predominant weight was given to Part 2 matters, then there would indeed be little room in which a planning discretion under the Act could operate. There is some force to this submission.
[63] My primary purpose in setting out so extensively the passages from the Environment Court’s judgment which deal with cultural interests was to highlight the measured and indeed sympathetic manner in which the Court approached its task. The first appeal point19 suggests the Court failed in its s 6(e) obligation to recognise and provide for Maori and cultural relationships. This is indeed a matter of national
importance and deserves (along with other s 6 matters) close and measured consideration.
[64] But the mandatory s 6 requirement “to recognise and provide” does not operate in a vacuum. It is one of many factors to be considered under the Act in achieving, in the context of the exercise of the Act’s statutory powers, its purpose of promoting the sustainable management of natural physical resources. Harbours, entrance channels, ports, pipi beds, and fishing grounds are clearly natural and physical resources. They are not exempt.
[65] There is much force in Courtney J’s observation in Freda Pene Rewiti Whanau Trust v Auckland Regional Council20 that ss 6, 7, and 8 are subordinate to s 5 and of descending significance between one another. Courtney J additionally commented:21
... while all s 6 factors must be recognised and provided for, this exercise is not an end in itself but is an accessory to the primary purpose of the Act, namely sustainable management of this country’s natural and physical resources. It is for the specialist tribunal to accord the weight to the various factors that it considers appropriate.
I agree.
[66] For my part, although I do not disagree that ss 6, 7, and 8 might constitute a hierarchy to this effect,22 or, as Courtney J puts it, sections of “descending significance” I doubt whether much significant hangs on the hierarchy. In some cases certain sections or their subsections may be engaged. In other cases, not at all.
[67] What is clear is that, as a matter of statutory interpretation, Parliament in enacting Part 2 has deliberately chosen different words. Consideration of all three sections is mandatory (the use of the word “shall”). When considering s 6 matters of national importance, the statutory obligation is to “recognise and provide”. The
mandatory obligation is to have “particular regard” to the “various other” matters
20 Freda Pene Rewiti Whanau Trust v Auckland Regional Council HC Auckland CIV-2005-404-356, 9
December 2005 at 102.
21 At 72.
22 See alsoWaikanae Christian Holiday Park v Kapiti Coast District Council HC Wellington CIV-
2003-485-7764, 27 October 2004 at [99].
provided for in s 7. The adjective “particular” denotes emphasis. And, for principles of the Treaty of Waitangi (s 8), the mandatory obligation is to take them into account.
[68] Whether an obligation to “take into account” has lesser importance than an obligation to “recognise and provide” involves an interpretative exercise which must ultimately depend on the relevant subject matter of each of the three sections and the context of the evaluation.
[69] Throughout its decision the Court has been alert to and weighed s 6(e) and (g) matters of national importance. It has not paid mere lip service to s 6(e). Rather it has, at length, set out the history of Mauao, Te Awanui, Panepane Point, and the fishing grounds. It has recognised the deleterious effect which the history of the last
170 years in the region has had on those matters dear to the tangata whenua and their culture.
[70] The hearing process itself forced the parties into a greater degree of consultation. The harbour and the Port will not go away. Nor will Mauao, Tanea Shelf or Panepane Point. Nor will the fishing grounds. The judgment which must be brought to bear on PTL’s application under the Act must be consistent with the s 5 purpose; must involve a weighing of many factors including Part 2 matters; and requires at the end of that process an evaluative assessment consistent with the purpose of the Act. This is precisely what the Court has done in a fully informed and sensitive way. The moratorium on interfering with Tanea Shelf, for example, is a product of the balancing exercise. So too are the conditions designed to strengthen tangata whenua input into matters of harbour policy.
[71] When considering s 6 the Environment Court held as follows:
[237] In terms of Section 6(e) and (f) of the Act, we find that Mauao, Te Awanui and their surrounds are the ancestral lands and waters of the tribes of Tauranga Moana and their respective hapu. Their relationship and their culture and traditions with this land and waters and associated taonga such as the fisheries, turns on their historic, spiritual and cultural associations and values. We also find these features form part of their historical heritage. We note that there will be an impact on their ancestral relationship, their culture and traditions including the mana and identity of the Tauranga Moana tribes with Te Awanui and Mauao. We consider that will also be some effect on their historic heritage values associated with Mauao and Te Awanui.
[72] On s 7(a) (kaitiakitanga) the Court accepted (there being no dispute) that the Tauranga Moana tribes and their hapu were kaitiaki.23 On s 8 matters. The Court accepted it had to take into account the relevant principles of the Treaty of Waitangi given that the Tauranga Moana tribes had recognised kaitiakitanga and manu whenua over Mauao and Te Awanui.24
[73] The Court correctly made findings about cultural effects and the balancing exercise it had to undertake:
[241] In practical terms our findings above mean that we accept the evidence of the appellants that there will be the following cultural effects. We consider these effects to be more than minimal (de minimis) and as such, must be avoided, remedied or mitigated to achieve an acceptable level of effect under Section 5 of the Act. These cultural effects are:
[a] the interference with Mauao by the channel widening at
Tanea Shelf;
[b] the potential effects on Panepane Point that could be affected by the Matakana shoreline moving beyond its observed historical range;
[c] the damage to Te Paritaha and the imemdaite loss of pipi and other kaimoana such as kina and paua, titiko etc;
[d] potentially some loss of tikanga and matauranga
(knowledge); and
[e] the limitation on the rangatiratanga and katiakitanga exercised by the appellants under the management regime of the Tauranga Moana Iwi Customary Fisheries Charitable Trust, tangata kaitiaki and their management of Te Maunga o Mauao Mataitai Reserve under the Fisheries (Kaimoana Customary Fishing) Regulations 1998.
[242] We must also consider these cultural effects alongside the undisputed evidence of the Port of Tauranga that it is of national and regional economic significance. We are also convinced that its ability to develop further will ensure its continued relevance to exporters who rely on efficient and cost effective access to international markets. Such access is increasingly dependent on bigger shipping vessels with expanded container capacity.
[74] The Court rejected submissions which had been made in opening by PTL’s
counsel that it should only consider physical effects. The Court was very clear that
impacts might affect historic, traditional, and spiritual aspects of Maori relationship with their ancestral lands, waters, and their kaitiakitanga.25
[75] The Court concluded, after giving close consideration to ongoing discussion between the parties and a shared desire to work for ecological improvements and gains of Te Awanui, as follows:
[298] On balance, taking into account those developments, we all conclude that the proposed conditions offered by the Port during the closing of its case and as varied in this decision, adequately avoid, mitigate or remedy all these cultural effects. We accept that the appellants’ view of Mauao and Te Awanui as their tipuna or ancestors, and that they cannot as a matter of tikanga, ever agree to the Port’s application. But, and as a number of cases including Whangamata Maori Committee v Waikato Regional Council26 indicate, the provisions of Part 2 of the Act dealing with Maori interests where well founded in the evidence, give no veto power over developments under the Act. Rather, these interests must be balanced against the other matters listed in Part 2 and the over-riding purpose of the Act under Section
5 to promote the sustainable management of natural and physical resources.
This analysis is exactly what the Act requires. There is no error.
[76] The appellant’s second appeal point, that the Court made findings contrary to the overwhelming weight of cultural evidence without providing reasons for doing so, must fail. This is not a tenable error of law. The Court’s findings were reached after anxious consideration of all the cultural evidence it had received. Its evaluative conclusion (at [298]) that, on balance, the consents sought by PTL to develop further the channel and Port involved conditions which adequately avoided, mitigated, or remedied cultural effects, was a conclusion open to the Court. The Court acknowledged that the appellants could not as a matter of tikanga and tipuna ever agree to PTL’s application. But that cultural consideration does not change Part 2 factors into a veto power, as the Court correctly acknowledged.
[77] The appellant’s third appeal point, dealt with briefly by Ms Kapua but expanded in a clear and forceful way by Mr Koning, was that the Court failed to pay particular regard to the status of the Mataitai Reserve as an expression of the
Crown’s Treaty obligations. As I have already indicated27 the Court was indeed alert
to Mr Koning’s submission and was aware that the Mataitai was a product of the
1992 Fisheries settlement.
[78] The impact of the consents on the Mataitai Reserve in my judgment engaged all three relevant sections (6, 7, and 8). All Part 2 matters were appropriately considered and weighed by the Court. Relevant too was the evidence that PTL already had dredging consents in respect of the channel; that dredged materials were, with appropriate consents, placed elsewhere both inside and outside the Mataitai Reserve; and that there was a proposal to create a rock reef inside the Reserve which would enhance the environment for kaimoana (shellfish and crustaceans). The impact of consents on pipi beds was subject to much evidence and carefully weighed. It was held to be fairly minimal. The historic status of the beds to seed young pipis and as an ongoing source of kaimoana would be preserved.
[79] Mr Koning’s submission that the Environment Court erred in law because it failed to recognise that the Mataitai Reserve was the product of Treaty settlement is rejected. I cannot fault the Court’s consideration of the Mataitai Reserve and its history. Nor can I fault the Court’s evaluation.
[80] Additionally, I accept Mr McCarthy’s submissions that the Court correctly identified the two relevant Treaty principles: that the proclamation of the Mataitai Reserve under the Fisheries (Kaimoana Customary Fisheries) Regulations 1998 was an expression of the Crown’s legal obligation to Maori in respect of customary fishing; and that, for Resource Management Act purposes, the Mataitai Reserve does not have greater significance over and above its status of national importance pursuant to s 6(e).
[81] Ms Kapua’s submission that the Court erred by not considering or preferring the option of doing nothing is, with respect, untenable. Untenable too is the theme threading through all the appellant’s submissions that the Court did not adequately consider alternatives. The Court gave close consideration to alternatives and to the
various options open to it:
27 Supra [46].
[243] In cases such as this the Court is entitled to have regard to questions of alternatives. As the High Court noted in Meridian Energy Ltd v Central Otago District Council (Lammermoor)28, although the test is not mandatory, it will clearly be more likely to arise in circumstances where matters under Section 6 arise.
[244] We accept that there are no alternative methods or routes which would allow for the deepening of the channel with lesser effects. The issue in this case is simply whether the depth and the width sought are required i.e. is the full extent of this alteration achieving sustainable management.
[245] The further modification of Tanea Shelf is to provide a safety margin for vessels of between 300m and 350m in length. The Maersk S Class at
350m is not a vessel identified as being one likely to utilise the Port in the
next 10 years. Thus, the question must arise as to whether or not the effect on Tanea Shelf and on the Mauri of Mauao is justified and whether it can be delayed or avoided.
[246] We see there may be advantages in delaying widening of the channel at Tanea Shelf. It may be that vessels requiring the widening do not appear in New Zealand until late in the consented period of 15 years. If they do appear they may be more manoeuvrable or there may be appropriate assistance by way of large tugs. A delay would also give each party more time to appreciate the positions of other parties and work towards a better solution.
[247] Against this are the reasons advanced by the Port for doing the widening early and establishing new habitat on the proposed reef. This has advantages for kaimoana gatherers who would have improved access to the resource offered by a shallow reef community.
[248] Our conclusion is that the widening should be delayed as long as possible and thus the dredging done in at least two stages.
[82] Thus the Court saw merit in, and imposed, delay on modifications to Tanea Shelf. It also concluded that dredging should be staged. The short answer to Ms Kapua’s submission that the Court should have taken no action was that articulated by the Court in [244]. The Court correctly saw deepening and widening the channel as a matter which needed consideration in the light of the s 5 purpose.
[83] The suggestion that modification of the Port of Tauranga for future use by big ships did not justify the consent sought was rejected by the Court:
[251] Several parties suggest another alternative was that Tauranga Port not be used for big ships. We reject this alternative for several reasons:
[a] It would not provide for the efficient use of the existing Port infrastructure;
28 Footnote omitted.
[b] It is not for this Court to make decisions as to which ports should or should not cater for big ships; and
[c] If a consent cannot be granted without unacceptable impacts then it should be refused rather than suggesting another port is more appropriate.
[84] The final submission of substance, raised by Ms Kapua, related to the cultural evidence provided by PTL’s witness, Mr Mikaere. Ms Kapua is correct when she asserts that Mr Mikaere had no mandate to give evidence on behalf of Ngati Ruahine or other Tauranga Moana iwi or hapu. But that is not the reason why Mr Mikaere gave evidence. He was called as an expert who had given evidence in many other fora. He had previously supported (in different parts of the country) iwi claims. He was not called, to give cultural evidence on behalf of Ngati Ruahine. Rather his expertise was designed to assist the Court in its assessment of cultural damage. The appellants themselves called witnesses on this aspect, as did TRONIT.
[85] The Court certainly considered Mr Mikaere’s evidence under the heading “Cultural evidence for the Port”.29 Mr Mikaere did not challenge the cultural importance to tangata whenua of Te Awanui and Mauao. He identified “the main elements of the cultural landscape”,30 geographic features, and commented that most of these would not be affected by the dredging. Affected features would be Te Paritaha (the pipi beds), Tanea Shelf, and Panepane Point where the effects would be modification to the seabed in respect to Te Paritaha, Tanea Shelf and possible risk of scouring of Panepane Point.
[86] Panepane Point was historically significant because it was the place where Raumati, who had destroyed the Arawa canoe, was caught and decapitated by Hatupatu. Mr Mikaere considered that increases of the shoreline over the centuries would place the site of the homicide well inland of the current shoreline.
[87] Mr Mikaere referred to evidence from one of the appellant’s witnesses, Mr Coffey, that modifying the sea bed at Tanea Shelf was akin to cutting the toes of Mauao as “a modern day gloss”. In general Mr Mikaere considered that remedial
measures would mitigate the impact of the dredging.
29 [217] – [226].
30 [219].
[88] As to evidence to the effect that there would be an adverse impact on the mauri and health of Te Awanui Mr Mikaere deposed that this should not be determinative of the issues before the Court. The Court had recognised the mauri of Te Awanui had already been diminished over the years, but that there was room for the mauri and health of the harbour to be enhanced with some of the proposed conditions.
[89] There is nothing to suggest that Mr Mikaere’s evidence was determinative. Certainly his evidence supported some mitigation. I do not consider there is any error of law arising out of the Environment Court receiving and considering Mr Mikaere’s evidence.
[90] In hearings of this type the cultural evidence of affected iwi is only part of the factual matrix. The legend relating to Mauao31 has relevance. Relevant too, if any was before the Court, would be evidence of Mt Maunganui’s volcanic past, the volcanic origins of the boulders on Tanea Shelf, and other scientific and biological evidence about the landscape.
Result
[91] In the previous section of this judgment I have discussed and analysed counsel’s submissions. In every section of this judgment I have set out relevant portions of the Environment Court’s judgment.
[92] My conclusion is that the Environment Court correctly considered the competing evidence before it. It gave careful and sympathetic attention to the cultural evidence. It has given correct weight to all Part 2 matters, including ss 6, 7, and 8. It has evaluated all relevant matters and statutory imperatives. It has reached a conclusion consistent with the Act’s purpose.
[93] I am satisfied that, in reaching its conclusions and attaching the conditions which it did to the recommendations made to the Minister, the Court made a correct
evaluation, which was open to it, on the matters before it. In particular the Court
31 Supra [19].
correctly discharged its responsibilities under ss 6, 7, and 8. I discern no errors of law. Nor have counsel been able to point to matters in their submissions which have the status of errors in law.
[94] For all these reasons therefore (including the analysis in the previous sections of this judgment) the appeal is dismissed.
..........................................
Priestley
J
Counsel:
P Kapua, Tamatekapua Law, Auckland. Email: prue@tamatekapua.co.nz
J P Koning, Koning Webster, Tauranga. Email: john@kwlaw.co.nz
P H Cooney, Cooney Lees Morgan, Tauranga. Email: pcooney@clmlaw.co.nz
V J Hamm, Holland Beckett, Tauranga. Email: Vanessa.hamm@hobec.co.nz
M Paddison, Holland Beckett, Tauranga. Email: michelle.paddison@hobec.co.nz
P A McCarthy, Crown Law, Wellington. Email: peter.mccarthy@crownlaw.govt.nz
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