Hawke's Bay Regional Council [2023] NZHC 3343 (23 November 2023)

Last Updated: 8 January 2024

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-82 [2023] NZHC 3343

UNDER	the Resource Management Act 1991
IN THE MATTER	of an appeal pursuant to section 299 of the Act
AND
IN THE MATTER	of the Environment Court’s Report in respect of submissions under section 209 of the Act relating to the Special Tribunal Recommendation Report on an application for a Water Conservation Order in respect of the Ngaruroro and Clive Rivers
BETWEEN	HAWKE’S BAY REGIONAL COUNCIL Appellant

Hearing:	On the papers
Counsel:	P A C Maw and I F Edwards for Appellant L C Ford for Horticulture New Zealand (a party under s 301 of the Resource Management Act 1991) P D Anderson and Y Downing for Royal Forest and Bird Protection Society of NZ Inc (a party under s 301 of the Resource Management Act 1991) K M Katipo and C T Mataira for Ngā Kaitiaki o Te Awa o Ngaruroro
Judgment:	23 November 2023

JUDGMENT OF RADICH J

(Application by Ngā Kaitiaki o Te Awa o Ngaruroro for special leave to bring a separate appeal out of time)

• [1] Ngā Kaitiaki o Te Awa o Ngaruroro, a rōpū which represents a number of hapū located around the Ōmahu Marae in Central Hawke’s Bay, wishes to bring an appeal

RE HAWKE’S BAY REGIONAL COUNCIL [2023] NZHC 3343 [23 November 2023]

from a water conservation order recommendation of the Environment Court.¹ It tried to meet the statutory requirements for the bringing of an appeal. However, operating without counsel, the requirements were not met. As a result, Ngā Kaitiaki seeks special leave to bring the appeal out of time.

• [2] It seeks to bring its appeal alongside this appeal by Hawke’s Bay Regional Council. The Regional Council does not oppose the application and abides the Court’s decision. However, the Royal Forest and Bird Protection Society of New Zealand Inc, an interested party in the Regional Council’s appeal, opposes the application. It says that the grounds upon which an extension of time could be warranted are not met.

• [3] The issue to be determined is whether or not the Court should exercise its discretion to extend the time prescribed for appealing the Environment Court’s recommendation. For the reasons I go on to give, I am satisfied that it should.

The water conservation order recommendation to which the appeal relates

• [4] Following the report of a special tribunal, appointed under s 202 of the Resource Management Act 1991 (the RMA), and the holding of an inquiry under s 210 of the RMA, the Environment Court made a report to the Minister for the Environment on 4 November 2022 recommending the grant of a water conservation order.

• [5] Ngā Kaitiaki led evidence and made submissions before the special tribunal and in the Environment Court’s inquiry.

The points on which Ngā Kaitiaki wishes to appeal

• [6] It is Ngā Kaitiaki’s view that the proposed water conservation order does not provide adequately for historical associations to the awa, the interests of those it represents or for kaitiakitanga as it relates to the awa. It is not opposed to the water conservation order per se. Rather, it says that a particular clause in the proposed water conservation order – cl 12.1 – fails to provide for the interests of relevant Māori groups.

1. The hapū represented by Ngā Kaitiaki are Ngāi Upokoiri, Ngāti Hinemanu, Ngāti Māhuika and Ngāti Honomōkai.

• [7] Clause 12.1 of the proposed water conservation order is in the following terms:

• 12.1 This Order acknowledges the rights and interests of the Māori landowners, iwi and hapū and the exercise of their mana whenua and kaitiaki rights, duties and obligations in this regard and nothing in this Order prevents the exercise of any of those rights, duties and obligations:

(a) To aspire to obtain a transfer of authority concerning the management of water to an iwi authority pursuant to s 33 of the Resource Management Act 1991; and

(b) Under the provisions of any Ngā Whenua Rāhui Kawenata.

• [8] In its memorandum of counsel in support of this application, of 26 October 2023, the adjustments that Ngā Kaitiaki seek are in the following terms:

(a) Provision for co-management/monitoring for example through:

(i) Inclusion of a monitoring report.

(ii) Inclusion of notice and consultation with hapū and iwi when preparing plans or policy statements pertaining to the Awa.

(b) Provision for acknowledgement of the historical association and mana whenua, including protection of wāhi tapu, sites of significance or reference to such including:

(i) Definition of Mana Whenua hapū and Iwi.

(ii) Definition of hapū.

(iii) Schedule to the WCO which includes acknowledgement of hapū and iwi and association with the Awa.

(c) Modification of wording that is significant and reflective of Ngā Kaitiaki and Māori groups such as:

(i) Amendment of kaitiaki to kaitiakitanga, which more appropriately reflects the exercise of guardianship and stewardship and is consistent with s 6(e) RMA relationship of Māori and their culture and traditions with ancestral water.

(ii) Amendment of the wording to read Māori landowners, hapū and iwi, as this more appropriately reflects the customary usage of the Awa.

(iii) Amendment of the wording “under the provisions of any Ngā Whenua Rāhui Kawenata” to read “under the provisions and consistent with the values of any Ngā Whenua Rāhui Kawenata.

The provisions on applications to appeal out of time

• [9] Under s 299 of the RMA, a party to a proceeding before the Environment Court may appeal on a question of law to the High Court against any decision, report or recommendation of the Environment Court. The appeal is to be made under the High Court Rules 2016 except to any extent that the Rules are inconsistent with ss 300–307 of the Act.

• [10] One inconsistency between the Rules and the RMA is that, under s 300 of the RMA, a notice of appeal is to be filed within 15 working days after the date on which the appellant is notified of the Court’s decision or report and recommendation.² Within a further five working day period, an applicant is to serve a copy of the notice on every other party to the Environment Court proceedings and on the Registrar of the Environment Court.

• [11] Under s 306 of the RMA, the High Court may extend those periods of time. The Court’s ability to extend the time prescribed for appealing is provided for, also, in r 20.4(3) of the Rules.

• [12] The factors that the Court needs to consider in assessing an application for special leave were identified by the Supreme Court in Almond v Read.³ They are as follows:

(a) The length of the delay. The time period between the expiry of the appeal date and the service of the appeal should be addressed, as should the time period between the service of the appeal and the application for leave to appeal.

(b) The reasons for delay. Issues as to whether the delay was the result of error, inadvertence, indecision or whether it was deliberate need to be addressed.

² Whereas, under r 20.4 of the High Court Rules, an appeal is to be brought within 20 working days.

3. Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38] and [39]; see also Lau v Auckland Council [2016] NZHC 2556.

(c) The conduct of the parties, particularly of the applicant. The Court is required to consider positive or negative conduct on the part of the applicant, or of any party, when considering whether or not to allow special leave.

(d) Any prejudice or hardship to a respondent. The greater the prejudice, the weaker the case for leave will be.

(e) The significance of the issues raised by the proposed appeal, both to the parties and more generally. If there is a public interest in the issues, the case for an extension is likely to be stronger than if there is no such interest.

(f) The merits of a proposed appeal. Consideration of the merits of an appeal in the context of an application to extend time must necessarily be relatively superficial. It is not for the Court to determine the appeal in any substantive way. At this point in the process, the Court needs a sense of whether a proposed appeal is lacking in any merit – for example, because it is beyond the Court’s jurisdiction, legally untenable, an abuse of process – or whether there is some basis for saying that, if leave is granted, an arguable point will proceed for determination.

• [13] I consider each factor in turn.

The length of the delay and the reasons for it

• [14] The Environment Court’s report to the Minister was given on 4 November 2022. The 15 working day period within which to file a notice of appeal expired on 25 November 2022. Ms Mauger, the convener for Ngā Kaitiaki, has said in her affidavit in support of the application that Ngā Kaitiaki appealed the Environment Court’s report on 19 November 2022. It would appear that notice of Ngā Kaitiaki’s intention to appeal was given to the Environment Court on that date. Because Ngā Kaitiaki was unrepresented, it would seem that it was uncertain about what it should do. Ms Mauger referred to having “previously filed information with this Court [the High Court] on 9 December 2022” about its efforts to secure counsel and financial

assistance in relation to the appeal. But in any event, a document described as an application under ss 301 and 306 of the RMA was filed by Ngā Kaitiaki on 22 December 2022.

• [15] On 14 February 2023, Cyclone Gabrielle struck the Hawke’s Bay. It had a significant impact on the Ōmahu community. During the three months that followed, Ngā Kaitiaki’s priority was the provision of aid and support to its community, which was provided through its marae.

• [16] Because Ngā Kaitiaki’s application had not been served, the Regional Council, together with Horticulture New Zealand and Forest and Bird – interested parties in the appeal – sought and obtained timetabling orders leading to a hearing of the appeal on 8 May 2023.

• [17] When, subsequently, Ngā Kaitiaki’s application was brought to the Regional Council’s attention, further directions from the Court were sought.

• [18] In a minute of 5 April 2023, Ngā Kaitiaki were directed by the Court to clarify their position. In particular, clarification was sought on whether Ngā Kaitiaki were seeking to bring their own appeal under s 299 of the RMA or whether they were simply looking to support the Regional Council’s appeal. The 8 May fixture was vacated so that Ngā Kaitiaki’s position could be considered.

• [19] On 19 April 2023, a document was filed by a related party to Ngā Kaitiaki which endeavoured to respond to the Court’s directions. Further information was needed and, in a minute of 14 August 2023, further details from Ngā Kaitiaki were sought.

• [20] Ms Mauger, for Ngā Kaitiaki, filed a memorandum in response on 6 September 2023 in which she confirmed Ngā Kaitiaki’s wish to appear and be heard on the Regional Council’s appeal and that the documents filed on 22 December 2022 were intended to be an application for an extension of time under s 306 of the RMA to file a separate notice of appeal. It was said that ongoing steps were being taken to appoint counsel.
• [21] Ms Mauger appeared for Ngā Kaitiaki in a teleconference with the Court on 12 September. In the Court’s minute that followed, Ngā Kaitiaki were directed to file an application under s 306 of the RMA for an extension of time within which to bring the intended appeal together with an affidavit in support and the Regional Council, Horticulture New Zealand and Forest and Bird were directed to file any documents in opposition.

• [22] Ngā Kaitiaki have explained that, throughout this time, they had been trying to engage a lawyer. They are a small rōpū without financial means. Endeavours in April and May proved unsuccessful. Financial support was then secured from the Tamatea Pokai Whenua Settlement Trust (a post-settlement governance entity) on 31 August 2023. Approaches to lawyers between July and September 2023 proved unsuccessful. Counsel now representing Ngā Kaitiaki were approached in late September 2023 and were engaged on 4 October 2023.

• [23] In accordance with the Court’s directions, Ngā Kaitiaki (now through counsel), on 12 October 2023, filed a memorandum explaining the intended appeal and the grounds for seeking leave to appeal, together with Ms Mauger’s affidavit in support.

• [24] Neither the Regional Council nor Horticulture New Zealand opposes the application. However, as mentioned, Forest and Bird, on 19 October 2023, filed a memorandum in which it opposed Ngā Kaitiaki’s application for an extension.

• [25] At a teleconference on 24 October 2023, during which Ngā Kaitiaki’s application was heard, Forest and Bird raised the point that there were parties in the Environment Court proceeding who are not aware of Ngā Kaitiaki’s application, who may be prejudiced and who should have an opportunity to respond. They were said to include Whitewater New Zealand, which was a co-applicant for the water conservation order.

• [26] Accordingly, in minute of 24 October 2023:

(a) Ngā Kaitiaki were directed to file a memorandum in response to Forest and Bird’s memorandum; and

(b) a set of relevant documents, described in the minute, were to be served on every other party in the Environment Court proceedings who would otherwise be entitled to receive service of a notice of appeal under the RMA. Those parties were then given 14 days to file and serve any notice of opposition, or alternatively, a memorandum in response to Ngā Kaitiaki’s application.

• [27] The only document received was from Whitewater New Zealand which advised that it will abide the Court’s decision.

• [28] It was agreed in the 24 October 2023 teleconference that in these circumstances Ngā Kaitiaki’s application would be determined on the papers.

• [29] Forest and Bird considers that the delays on Ngā Kaitiaki’s part are just too long. It is concerned in particular with its delay following the Court’s 5 April 2023 minute and with its delay in securing the appointment of counsel.

• [30] There was delay in November and December 2022 as Ngā Kaitiaki struggled with the appeal process.

• [31] Then there were delays between early April 2023 – when the Court first directed Ngā Kaitiaki to clarify their position – and early September 2023, when they did so. However, during that five-month period, Ngā Kaitiaki were endeavouring to cope with the effects of the cyclone, were taking steps to appoint counsel and had endeavoured to communicate with the Court through their letter of 19 April 2023.

• [32] While the delays have been lengthy and while the clarification sought was slow to arrive, the reasons for the delays are understandable. Ngā Kaitiaki were out of their depth, without time, without resources, and without counsel.

The conduct of the parties

• [33] Forest and Bird say that the conduct of Ngā Kaitiaki has fallen far below the expected standard in the sense that they have failed to respond to requests for clarification of their position over a prolonged period.
• [34] The position here mirrors that which has been addressed in the course of considering the reasons for the delay on the part of Ngā Kaitiaki. There is in my view no conduct on their part which would disentitle them from now proceeding.

Prejudice or hardship to the respondent

• [35] Forest and Bird says that the delay of almost a year is significant prejudice in itself. It points to the need to have the 8 May 2023 fixture vacated and to the time spent in trying to ascertain the nature of Ngā Kaitiaki’s involvement.

• [36] There is little doubt that it would have been preferable to have been able to avoid delay and to have had the substantive appeals heard by now. However, in the circumstances described already, Ngā Kaitiaki’s position can be understood and excused and any prejudice that Forest and Bird has encountered does not outweigh the prejudice to Ngā Kaitiaki if they are now precluded from advancing their appeal.

The significance of the issues raised

• [37] Forest and Bird says that there is no basis for an assertion by Ngā Kaitiaki that the proposed appeal has potential public significance.

• [38] Ngā Kaitiaki say that the Environment Court has found that the consultation process undertaken by the Special Tribunal was inadequate and that all Māori parties engaged in the hearing process had, in a united way, opposed the water conservation order in the form that was proposed. Notwithstanding that, Ngā Kaitiaki say, the Environment Court did not address those deficiencies in the terms of its order, finding instead that the wording it had chosen in cl 12.1 was sufficient to protect Māori interests.

• [39] Ngā Kaitiaki say that the wording of clause 12.1 needs to be clarified in order to represent adequately the interests of the hapū and iwi affected by the proposed water conservation order. It is said that Māori have a special spiritual connection with the Ngaruroro awa, that the nature of that connection was addressed in reports and evidence before the special tribunal and the Environment and that there are errors of law in the way in which those interests are reflected in the terms of the Environment

Court’s report and recommendations. As Ngā Kaitiaki put it, they are concerned that the effect of the water conservation order will be that their voices will be lost.

• [40] While the Court is not in a position at this stage in the process to look beyond the ways in which the issues have been expressed by Ngā Kaitiaki, I am satisfied that the issues are of some significance. The interest in them extends beyond the interests of Ngā Kaitiaki alone.

Merits of the proposed appeal

• [41] Forest and Bird says that the proposed appeal is without merit. It says that the Environment Court considered each of the matters that Ngā Kaitiaki now raises, including for example the potential transfer of authority to an iwi authority merit under the RMA, the adequacy of consultation, the existing Waitangi Tribunal claim and mana whenua rights and associations. Accordingly, it is said, the Environment Court reached a merits-based decision which is not susceptible to challenge on a question of law.

• [42] Ngā Kaitiaki say that the question of law centres upon the matters to which the Environment Court was to have regard when considering a water conservation order under s 212 of the RMA. It is said that the Court erred in the ways in which it perceived and then applied its statutory powers. Ngā Kaitiaki emphasise the lack of adequate consultation, the opposition of Māori groups to the terms of the water conservation order and to the tikanga-based approach that the Court needed to take.

• [43] As the Supreme Court in Almond v Read put it, consideration of the merits of an appeal in the context of an application such as this must necessarily be relatively superficial. The Court is not in a position to consider the merits of the appeal in any substantive way. What can be said at this point is that the appeal is not lacking in all merit. To put it in another way, it seems sufficiently clear that arguable points are able to proceed for determination.

Result

• [44] Each of the factors the Court needs to consider in assessing an application for special leave to extend the time prescribed for bringing an appeal have been

determined in Ngā Kaitiaki’s favour. As a result, it is ordered that the time prescribed for bringing an appeal under ss 299 and 300 of the RMA and r 20.4 of the High Court Rules is extended until 10 working days from the date of this decision.

• [45] The order is expressed in this way so as to enable Ngā Kaitiaki to file a new notice of appeal document. The appeal will need to be filed as a separate proceeding. To date, Ngā Kaitiaki’s position, and the application for special leave, has been considered within the framework of the Regional Council’s appeal. However, Ngā Kaitiaki’s appeal is properly characterised as a separate proceeding and should be filed on that basis. It would seem sensible for it to be case-managed alongside and heard at the same time as the Regional Council’s appeal.

• [46] I do not at this point see it as being appropriate to make an award as to costs, or to give directions for the determination of costs, following the outcome of Ngā Kaitiaki’s application. There has been a degree of give and take on the part of all concerned. Moreover, while the application has been successful, the hearing of the appeal has been delayed. I do not regard any further interlocutory processes, for the purpose of addressing costs, to be warranted given the history of the proceeding to date. However, in the event that, despite these comments, a party wishes to make an application, then it can be considered at a case management conference.

• [47] A case management conference under r 7.14 of the High Court Rules is to be convened for this proceeding and in Ngā Kaitiaki’s proceeding following the filing of Ngā Kaitiaki’s notice of appeal.

Radich J

Solicitors/Counsel:

Wynn Williams, Christchurch for Appellant

Atkins Holm Majurey, Auckland for Horticulture New Zealand

Royal Forest and Bird Protection Society of New Zealand, Christchurch McCaw Lewis, Hamilton for Ngā Kaitiaki o Te Awa o Ngaruroro

Anderson Lloyd, Christchurch for Whitewater NZ Inc