Ngati Ruahine v Bay of Plenty Regional Council [2012] NZHC 3383 (13 December 2012)

Last Updated: 15 April 2013

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-65 [2012] NZHC 3383

UNDER Section 299 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: On the papers

Counsel: 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: 13 December 2012

JUDGMENT OF PRIESTLEY J Leave to appeal to Court of Appeal

NGATI RUAHINE V BAY OF PLENTY REGIONAL COUNCIL HC TAU CIV-2012-470-65 [13 December

2012]

[1] On 18 September 2012 I released a judgment1 which dismissed the appellant’s appeal from a December 2011 decision of the Environment Court. The appellant now seeks leave to appeal my decision to the Court of Appeal. All counsel were agreed that I should determine the appellant’s application on the papers. Full submissions have been filed.

[2] The application for leave was filed seven days out of time so far as the 28 day time limit prescribed by the Summary Proceedings Act 1957 was concerned. The appellant’s counsel contended for a different time period. However, as I indicated in my minute of 31 October 2012, I saw no reason why leave to file the application out of time should not be granted in the absence of the respondents being able to point to any prejudice. No issue of prejudice has been raised.

[3] It is trite law that New Zealand’s legal system confers, in most instances, an automatic right of appeal on factual and legal matters to all litigation parties. There is not, however, an automatic second right to appeal.

[4] A second appeal requires leave and is usually limited to a question of law in situations where the legal question involved gives rise to important issues of policy or statutory interpretation which transcend the partisan issues of the litigation parties.

[5] Appeals under the Resource Management Act 1991 (the Act) are no exception. Section 308(1) incorporates the provisions of s 144 of the Summary Proceedings Act so far as any appeals on questions of law to the High Court from the Environment Court under s 299 are concerned. It is under s 144(1) that leave is sought.

[6] In the context of the Act the Court of Appeal correctly articulated the test for leave in Huia Resorts Limited v Ashburton District Council.2 The Court stated:

[2] The combined effect of s 308 of the Resource Management Act 1991 and s 144 of the Summary Proceedings Act 1957 requires that the applicant meet a threshold before special leave to appeal may be granted by this Court. That is because the applicant is seeking to bring a second appeal against an

1 _{Ngati Ruahine v Bay of Plenty Regional Council [2012] NZRMA 523 (HC).}

2 Huia Resorts Limited v Ashburton District Council CA 29/05, 28 April 2005.

Environment Court decision. It must show that the further appeal would raise questions of law which by reason of their general or public importance, or for any other reason, ought to be submitted to this Court for decision. It is well established that this threshold entails demonstrating that there is a question of law capable of serious argument in a case involving a public or private interest which is sufficient in its importance to outweigh the cost and delay to the parties of permitting another appeal.

[7] As is apparent from [92]-[93] of my judgment I did not find, for s 299 purposes, any errors of law in the Environment Court’s decision. That, however, has not deterred Ms Kapua whose leave application essentially repeats issues raised in the High Court appeal.

[8] Ms Kapua submits that there are four points of law which need to be addressed by the Court of Appeal because they are of a general or public nature. The four points are:

(a) The High Court had erred in emphasising the economic and developmental aspirations of the second respondent at the expense of the adverse effects of matters of cultural and historical importance to tangata whenua. As such, undue weight had been given to economic matters which were not matters of equal importance to those set out in Part 2 of the Act.

(b) The High Court erred in determining that “an excessively elevated or predominant weight given to Part 2 matters undermines the exercise of a planning discretion under the Act”. Had Part 2 matters “been properly assessed” the significant adverse effects on tangata whenua and the cumulative effect of ss 5(2), 6(e), 6(g), 7(a), and 8 would have led to Resource Management Act consent not being granted.

(c) The High Court erred in determining that the evidence of Mr Mikaere (a second respondent witness) was not determinative of the issues that were the subject of his evidence. The High Court accepted that Mr Mikaere had no mandate to speak on behalf of tangata whenua. The Environment Court had accepted his evidence and the High Court had erroneously upheld that acceptance.

(d) The High Court erred in its assessment of competing matters by reference to the Environment Court being alert to the issues. A proper assessment required a Court (whether the Environment Court or High Court is unclear from counsel’s submissions) to be more than alert.

[9] Ms Kapua submitted that these questions of law were fundamental because Part 2 matters were relied on by Maori in their engagement in the planning process and were relevant to the protections and recognitions afforded by Part 2. She further submitted that there is a serious issue to be considered by the Court of Appeal “as to the process and emphasis in weighing matters that fall within Part 2” which had been raised but remained unresolved in the High Court judgment Central Plains Water

Trust v Ngai Tahu Properties Ltd.3

[10] As to the first purported error of law, my judgment did no such thing, and indeed I made it very clear at [69] and [70] that an application under the Act must be evaluated in a way consistent with the s 5 purpose and involve a weighing of many factors including Part 2 matters. What was required was an evaluative assessment consistent with the purpose of the Act. In any event, a submission of “undue weight” does not amount to an error of law.

[11] Counsel’s second point (discouraging excessively elevated or predominant weight to Part 2 matters) is again a misunderstanding of what I decided. My judgment contained an analysis of whether the Environment Court had correctly weighed Part 2 matters. I was satisfied that it had and indeed saw no incorrect weighing. An assessment of evidence and weight cannot be elevated into a question of law, no matter how disagreeable the assessment may be to a party.

[12] As to the third point, involving the evidence of Mr Mikaere, neither in the High Court nor the Environment Court was there any suggestion that Mr Mikaere had a mandate to speak on behalf of tangata whenua. He did not purport to do so. He gave evidence as an expert cultural witness. The relevance of weight and his

_{evidence in the Environment Court does not constitute a question of law.}

3 Central Plains Water Trust v Ngai Tahu Properties Ltd HC Christchurch CIV-2006-409-2116, 8

February 2007.

[13] As to the fourth point of law it is, with respect, something of a travesty to suggest that my evaluation of the Environment Court’s decision was premised on a mere need for that Court to be alert to the issues before it. I set out in [17] the first paragraph of the Environment Court’s judgment. I incorporated into my judgment extensive passages from the Environment Court’s judgment for the purpose which I articulated in [63] – to demonstrate the measured and sympathetic manner in which the Environment Court had approached its task. I concluded that it had given correct weight to all Part 2 matters and had evaluated all relevant matters and statutory imperatives and had reached a conclusion consistent with the Act’s purpose (at [92]). The fourth point is not a balanced or correct interpretation of my judicial approach.

[14] On the issue of Central Plains Water Trust I note the submission of counsel for the intervening Attorney-General that the High Court judgment in that case concerned the priority of competing applications for resource consents. I note that Supreme Court in Ngai Tahu Properties Ltd v Central Plains Water Trust4 left unresolved the question of whether priority should be decided by a rule or through the exercise of a discretion. That unresolved issue has nothing to do with the current

case, particularly since there were no competing consents to those sought by the second respondent.

[15] New Zealand courts have long been sensitive to the cultural interests and beliefs of Maori and in particular the centrality of land. That sensitivity is buttressed by relevant provisions of the Act, especially Part 2. Judicial sensitivity was particularly evident in the December 2011 Environment Court judgment. But the understandable disappointment of some tangata whenua in the granting of consents which conflict with Maori cultural interests does not automatically create questions of law which will permit a second right of appeal unavailable to other litigants.

[16] My conclusion is that there are no questions of law in respect of which leave can properly be granted to appeal to the Court of Appeal.

4 Ngai Tahu Properties Ltd v Central Plains Water Trust [2009] NZSC 24.

_{[17] The application is therefore dismissed.}

..........................................
Priestley J

Counsel:

P Kapua, Tamatekapua Law, Auckland. Email: [e-mail]

J P Koning, Koning Webster, Tauranga. Email: [e-mail]

P H Cooney, Cooney Lees Morgan, Tauranga. Email: [e-mail]

V J Hamm, Holland Beckett, Tauranga. Email: [e-mail]

M Paddison, Holland Beckett, Tauranga. Email: [e-mail]

P A McCarthy, Crown Law, Wellington. Email: [e-mail]