IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY CIV [2013] NZHC 2746

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY CIV [2013] NZHC 2746 UNDER the Resource Management Act 1991 IN THE MATTER BETWEEN AND AND AND of an appeal against a decision of the Environment Court under s 299 of the Resource Management Act 1991 NGATI RAHIRI HAPU O TE ATIAWA (TARANAKI) SOCIETY INC Appellant NEW ZEALAND HISTORIC PLACES TRUST Respondent TODD TARANAKI LTD Applicant OTARAUA HAPU Section 274 Party Hearing: 15 August 2013 Counsel: JM von Dadelszen and ML Nicol for Appellant TJ Gilbert for Respondent LP Wallace and LM Wansbrough for Applicant Judgment: 21 October 2013 JUDGMENT OF BREWER J This judgment was delivered by me on 21 October 2013 at 4:30 pm pursuant to Rule 11.5 High Court Rules. Registrar/Deputy Registrar Solicitors: Copy to: Bannister & von Dadelszen (Hastings) for Appellant Luke Cunningham & Clere (Wellington) for Respondent Govett Quilliam (New Plymouth) for Applicant Otaraua Hapu (Waitara) NGATI RAHIRI HAPU O TE ATIAWA (TARANAKI) SOCIETY INC v NEW ZEALAND HISTORIC PLACES TRUST [2013] NZHC 2746 [21 October 2013]

2 Introduction [1] This is an appeal against a decision of the Environment Court. 1 The decision upheld conditions imposed by the New Zealand Historic Places Trust (the Trust) to a general authority it granted to Todd Taranaki Ltd (Todd) relating to its plan to build a gas pipeline within a defined area in the Tikorangi district. [2] The authority granted by the Trust permitted Todd to damage, destroy or modify archaeological sites within the defined area. The conditions which are the subject of the appeal are: Condition 8: Any archaeological work must be undertaken in conformity with any Tikanga Maori protocols or monitoring requirements agreed to by the Authority Holder and Ngati Rahiri and Otaraua, so long as the legal requirements of the authority are met. Condition 9: If any koiwi tangata (human remains) are encountered, all work should cease within 20m of the discovery. The NZHPT Regional Archaeologist, NZ Police and Ngati Rahiri and Otaraua must be advised immediately, in accordance with Guidelines for Koiwi Tangata/Human Remands (NZHPT Archaeological Guidelines Series No 8), and no further work in the area may take place until they have responded. [3] The appellant, Ngati Rahiri Hapu, does not oppose the building of the pipeline. Nor does it contend that the conditions are inadequate. Its case is that Otaraua Hapu should not be mentioned in the conditions. Ngati Rahiri Hapu submits that it, and it alone, has mana whenua over the relevant part of the defined area. 2 It accepts that Otaraua Hapu has ancestral links to the area, but these are subordinate to the relationship of Ngati Rahiri Hapu with the area. Therefore, for the conditions to 1 2 Ngati Rahiri Hapu O Te Atiawa (Taranaki) Society Inc v New Zealand Historic Places Trust (Pouhere Taonga) [2013] NZEnvC 113. In the hearing before the Environment Court, Ngati Rahiri Hapu accepted that a relatively small part of the defined area is part of the rohe of Otaraua Hapu.

3 include Otaraua Hapu on the same level as Ngati Rahiri Hapu is to elevate the status of Otaraua Hapu in an unwarranted way. 3 [4] The appellant s case is that a proper construction of the Historic Places Act 1993 (the Act) should have led the Environment Court to recognise the primacy of Ngati Rahiri Hapu s relationship with the land in the relevant part of the defined area. It erred in failing to do so. [5] A further ground of appeal contends that there was no evidence, or no sufficient evidence, to found the Environment Court s conclusions as to Otaraua Hapu s interest in the defined area. The statutory framework [6] The Act protects archaeological sites. They may not be destroyed, damaged or modified except pursuant to an authority granted by the Trust. Section 14 of the Act provides (relevantly): (1) On receipt of an application for an authority to destroy, damage, or modify any archaeological site or sites... the Trust may...: Grant an authority in whole or in part, subject to such conditions as it sees fit: [My emphasis] [7] The exercise by the Trust of its powers under this section must, of course, be in accordance with the purpose and principles of the Act. These are: (1) The purpose of this Act is to promote the identification, protection, preservation, and conservation of the historical and cultural heritage of New Zealand. (2) In achieving the purpose of this Act, all persons exercising functions and powers under it shall recognise The principle that historic places have lasting value in their own right and provide evidence of the origins of New Zealand s distinct society; and 3 Submissions for the appellant, 24 July 2013, para 8.1.

4 The principle that the identification, protection, preservation, and conservation of New Zealand's historical and cultural heritage should (i) (ii) (iii) (iv) Take account of all relevant cultural values, knowledge, and disciplines; and Take account of material of cultural heritage value and involve the least possible alteration or loss of it; and Safeguard the options of present and future generations; and Be fully researched, documented, and recorded, where culturally appropriate; and (c) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wahi tapu, and other taonga. [My emphasis] [8] Rights of appeal against decisions of the Trust are governed by s 20 of the Act. Appeals are to the Environment Court. Its powers are not unfettered: (6) In determining an appeal under this section in respect of a decision made under paragraph or paragraph of section 14(1) of this Act, the Environment Court shall have regard to any matter it considers appropriate, including (but not limited to) (c) (d) (e) (f) The historical and cultural heritage value of the site and any other factors justifying the protection of the site: The purpose and principles of this Act: The extent to which protection of the site prevents or restricts the existing or reasonable future use of the site for any lawful purpose: The interests of any person directly affected by the decision of the Trust: A statutory acknowledgement that relates to the site or sites concerned. the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wahi tapu, and other taonga. [My emphasis]

5 The appellant s submissions [9] The appellant s overarching submission is that tangata whenua status of Ngati Rahiri Hapu in respect of the relevant part of the defined area, which is located entirely within its rohe, and its exclusive mana whenua over that area means that to include Otaraua Hapu in the conditions fails to recognise in an adequate way the appellant s relationship with the area. [10] In the appellant s submission, the Environment Court erred in law as follows: 4 (c) (d) By applying the wrong legal test as to whether the Otaraua Hapu should have been referred to in the conditions imposed on the general authority by the respondent, by incorrectly determining that the interests of any person directly affected by the decision of the respondent were sufficient grounds to include the Otaraua Hapu; By failing to consider the meaning of the word relationship as distinct from interest, and give due weight to the relationship of Maori with their ancestral lands; By failing to consider that recognising a relationship in s 4(2)(c) of the Historic Places Act involves an assessment of the connection of Maori to their ancestral lands, not merely an interest ; and By concluding that the Otaraua Hapu has a relationship with and an interest in the land affected by the authority... in the absence of evidence to that effect. Interests directly affected [11] The appellant submits that the purposes and principles of the Act have primacy. When having regard to the interests of any person directly affected by the decision of the Trust, the Environment Court must first assess the relationship of Maori and their cultures and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga. Where that relationship establishes primacy in a cultural sense then the interests of any other person directly affected by the decision of the Trust must be given subordinate effect. This is reinforced, in the appellant s submission, by the obligation to recognise the relationship between Maori and their ancestral lands 5 and to have regard to that as considered appropriate. 6 The interests Ibid, at para 2.1. Historic Places Act 1993, s 4(2)(c). Ibid, s 20(6)(f).

6 of any person directly affected is merely a factor to which the Environment Court is required to have regard as it considers appropriate. 7 Whether interest necessarily connotes a relationship with land [12] The appellant submits that an interest is distinct from a relationship. A relationship implies a far greater connection than does a mere interest. Therefore, although the Environment Court might be justified in holding that Otaraua Hapu has an interest in the area, that is not the same thing as a relationship and in this case the relationship displaces the interest. (c) Recognising a relationship requires an assessment of Maori connection to ancestral lands [13] The appellant submits that the Environment Court failed to undertake an assessment of the strengths of the alleged competing connections. It follows from the above submissions that Ngati Rahiri Hapu considers that s 4(2)(c) of the Act requires such an assessment before an adequate decision as to the recognition of competing relationships and interests can be reached. (d) No basis for finding that Otaraua Hapu had a relationship with, or an interest in, the defined area [14] The appellant challenges the finding by the Environment Court 8 that Otaraua Hapu had a relationship with the relevant part of the defined area. The submission is that the evidence before the Environment Court did not establish that there was one. There were merely statements of belief. This submission is encapsulated in the following passages from the appellant s submissions: 9.10 For instance, Mr Doorbar stated in cross examination that Otaraua Hapu has an interest in, and a relationship with, the specified area (and also a much wider area) on a number of occasions. He also asserted that Otaraua Hapu s interest and relationship exists as a result of marriage between members of [Ngati Rahiri Hapu] and Otaraua Hapu, connections to people, and from the fact his tipuna have lived on the land as long as time records. Absolutely no supporting documentation or evidence was produced to support 7 8 Ibid, s 20(6)(d). Ngati Rahiri Hapu O Te Atiawa (Taranaki) Society Inc v New Zealand Historic Places Trust (Pouhere Taonga), above n 1, at [39].

7 Mr Doorbar s assertions, and this may be contrasted with the huge amount of research that underpinned the evidence of [Ngati Rahiri Hapu s] witnesses, Mr Holswich and Ms Marsh The only document that was produced by Mr Doorbar was a small excerpt from a document written by either his grandfather or grandmother in 1945, outlining Otaraua Hapu s boundary lines. The excerpt was, Mr Doorbar stated, a handwritten copy of another document. That document was not produced, and nor was the remainder of the document written by Mr Doorbar s grandparents. The respondent s submissions [15] Otaraua Hapu did not appear before me and did not need to given the position taken by the respondent. Mr Doorbar of Otaraua Hapu observed from the public gallery. The respondent appeared largely to defend its processes and to support the decision of the Environment Court. [16] The respondent submits that there are really two propositions put forward on behalf of Ngati Rahiri Hapu: First, as a matter of fact, Ngati Rahiri Hapu presently exercises exclusive mana whenua over the relevant part of the defined area that is, the area is within its rohe; and Second, as a consequence of that, Ngati Rahiri Hapu is entitled to recognition in authority conditions to the exclusion of Otaraua. [17] The respondent submits that even if Ngati Rahiri Hapu exercises exclusive mana whenua over the relevant part of the defined area, that cannot operate to exclude other hapu who have a legitimate interest in that area from being recognised in conditions to the authority. Accordingly, the issue of mana whenua is moot. The real question is whether both hapu have an interest in the area. Whether there is an interest or a relationship in the particular statutory context is a distinction without a material difference. [18] The respondent also points out that during the course of the Environment Court hearing it became apparent, and was recognised by the parties, that:

8 Some of the defined area was within Ngati Rahiri Hapu s rohe; Some of the land was within Otaraua Hapu s rohe; and (c) There was a dispute about whose rohe part of the land fell within. On that factual basis, there can be no criticism of conditions which recognise both parties. [19] The respondent emphasises that it is not its role to determine current competing contentions of cultural rights or interests in land. It submits that the appellant s reliance on case law decided under the Resource Management Act 1991 is misplaced. The express purpose of the Resource Management Act is to promote the sustainable management of natural and physical resources. 9 The purpose of the Historic Places Act relates to the historical and cultural heritage of New Zealand. 10 It relates to what happened in former times. [20] The respondent submits: It is submitted that this central distinction in focus between the two Acts is critical in assessing how the Trust (and the Court) makes decisions. To take a current interest in land to the exclusion of past interests, completely ignores the historical subject matter with which the HPA is concerned. 42. This is so especially when mana whenua is a temporal concept that can change like rohe boundaries over time. The fact one hapu exercises mana whenua in an area today, does not mean that it has done so for all time. A natural consequence of peeling back the layers of time is that frequently more than one group will have left its mark on the land and will have an historic connection to it deserving recognition. 43. Indeed, a hapu which has never exercised mana whenua over an area may still have a relevant interest in it. One example is a battle site where the ancestors of a hapu which has never exercised mana whenua in that area died Resource Management Act 1991, s 5(1). Historic Places Act 1993, s 4(1). Respondent s submissions dated 8 August 2013.

9 [21] In the respondent s submission, the factors set out in s 20(6) of the Act are not hierarchical. There is no exclusionary priority extended to present day mana whenua status. To interpret the provisions in this way would fundamentally ignore the historical context in which the Act operates. [22] The respondent disagrees with the appellant s submission that s 4 of the Act requires an assessment of the strengths of competing relationships with land: 55. The practical effect of allowing the appeal would be to impose upon the Trust an obligation to make determinations about the strength of respective groups claimed interests in land that is, it would require the Trust to be the arbiter of rohe disputes. That is a function the Trust was never intended to perform under the HPA, and for which it has neither the resources, nor the expertise. The applicant s submissions [23] The applicant supports the Environment Court s decision. It makes it clear, however: [it] remains ready and willing to engage with both hapu and to respect and observe tikanga protocols and it will assist in whatever way it can as part of the Mangahewa Pipeline Project to ensure each hapu is respected and that the appropriate protocols are observed. Discussion [24] An appeal from a decision of the Environment Court to this Court is limited to a question of law. 13 The first three grounds of appeal pose questions of statutory interpretation and are clearly questions of law. The fourth alleges that a conclusion was reached without evidence or, on the evidence, unreasonably. That is also a question of law, with the important qualification that the weight to be given to evidence is not for reconsideration in this Court. [25] It seems to me that the point this case raises on the first three issues is the extent to which the Trust, in fixing conditions to an authority, must recognise contemporary tikanga. Ngati Rahiri Hapu s case is that here and now it has mana whenua over the relevant part of the defined area. Otaraua Hapu does not Submissions on behalf of applicant dated 31 July 2013, at para 8. Resource Management Act 1991, s 299.

10 Therefore, for its mana whenua to be recognised, Otaraua Hapu must be excluded from conditions 8 and 9 as an executive party. To include Otaraua Hapu in the conditions on the same level as Ngati Rahiri Hapu does not recognise Ngati Rahiri Hapu s mana whenua because it derogates from it. [26] Ngati Rahiri Hapu does not say that Otaraua Hapu has no interest at all in any part of the defined area. At the hearing before the Environment Court, it accepted that part of the defined area is within Otaraua Hapu s rohe. Ngati Rahiri Hapu acknowledges shared ancestral connections. There is an acknowledged history. Ngati Rahiri Hapu s point, however, is that Otaraua Hapu s interest in that part of the defined area not within Otaraua Hapu s rohe is, in a cultural sense, subservient to Ngati Rahiri Hapu s mana whenua. Equally, tikanga requires Ngati Rahiri Hapu to protect Otaraua Hapu s interest. [27] During the course of argument before me, Mr von Dadelszen submitted 14 that the Trust could have both recognised Ngati Rahiri Hapu s mana whenua and provided for Otaraua Hapu s interest by requiring agreement with Ngati Rahiri Hapu after consultation with Otaraua Hapu. [28] The other parties say that recognising Maori cultural interests is all that the Act requires. It is not for the Trust to accord primacy to one set of interests at the expense of another. To do so would be contrary to the purpose and principles of the Act and unjustified against commonplace statutory interpretation. [29] I find Ngati Rahiri Hapu s argument attractive. If mana whenua exists then to recognise it requires giving it effect. It is true that the Act looks backwards and so others may have interests in land, but those interests are to be paid attention to in ways which do not derogate from mana whenua. Hence, Mr von Dadelszen s suggestion that the conditions should require agreement with Ngati Rahiri Hapu and consultation with Otaraua Hapu. 14 Initially, Mr von Dadelszen put this purely as a matter of legal submission. Subsequently he obtained instructions that the submission could be taken as accepted by Ngati Rahiri Hapu as a compromise position.

11 [30] However, my task is to examine the decision of the Environment Court to see whether it has erred in law. I cannot say that it has. [31] The Environment Court was aware both of the arguments for primacy by Ngati Rahiri Hapu and its obligation to decide the arguments in accordance with the Act: 15 We accept that Ngati Rahiri do not accept that Otaraua has the necessary status as a stand-alone hapu to entitle it to claim to have a relationship and/or an interest (in the relevant sense) in land over which Rahiri claims mana whenua, and thus to be named as a party in conditions 8 and 9. It is not for us to say whether that view is, in the Maori world view, right or wrong. But we have to deal with the statute, as it is written. [32] This statement is correct only if the statute as it is written does not require a judgment on whether Ngati Rahiri Hapu s view is right or wrong. However, the Environment Court, rightly in my view, brought its discussion back to the facts and the interpretation of the Act in relation to them: 16 [33] Ms Marsh accepted too that a person or a grouping may have an interest in an area of land that is quite different from, and independent of, any concept of rohe or of mana whenua. For instance, even an ancient enemy such as an iwi whose tipuna once invaded Taranaki could have an interest in a battle site where blood was shed and where, or near where, in all likelihood, their dead were buried. If it were the case that, on such a site, work was proposed that would likely disturb archaeological traces, and possibly koiwi, then it would be accepted that the descendants of those tipuna would have an interest, and could claim to be directly affected. [34] And we would add, if such elaboration of the issue is required, that if a person or a grouping of people has an interest that would be directly affected in that way, there must be a relationship of some significance with that land.... [36] So, it needs to be clearly understood that, even when considering an inter-māori issue, we are dealing with a concept that stands aside from issues of rohe and mana whenua. Indeed the concept is so different that under s 20(6)(d) (although not of course in terms of the other provisions relating specifically to Maori) it might not require any Maori connection at all given a sound factual basis a person of entirely European descent could plausibly claim an interest, and claim to be directly affected, in relation to a Trust decision about a particular piece of land Ngati Rahiri Hapu O Te Atiawa (Taranaki) Society Inc v New Zealand Historic Places Trust (Pouhere Taonga), above n 1, at [30]. Ibid.

12 [33] The Environment Court, on the evidence before it, formed a clear view that Otaraua Hapu has a relationship with, and an interest in, the land affected by the authority. It could therefore claim to be directly affected in relation to the Trust s decision about the defined area of land. [34] I respectfully accept the Environment Court s reasoning. Decision Interests directly affected [35] The Act does not require the Trust to assess the relationships of Maori with their ancestral lands so as to determine and accord precedence between claimed interests. I accept the respondent s submission that the purpose of the Act is so different from the purpose of the Resource Management Act that the cases cited by the appellant decided under the latter statute are really not relevant to this situation. [36] In my view, the Act requires the Trust to assess a site in its historical and cultural contexts. That is because the Act is concerned with heritage. In doing so, it must recognise the relationship of Maori with a site in the same contexts. That necessarily means recognising current relationships, but there is nothing in the Act to require the Trust to construct a hierarchy of relationships. [37] The Environment Court, properly, recognised this: 17 [27] We need to move from that point and ask whether it is necessary for a person who asserts a relationship, and an interest, and to be directly affected by a decision of the Trust (and the Court on appeal) to first demonstrate that the area in question is within a certain rohe, or that some particular grouping has mana whenua, whether exclusive or shared, over that area. [28] Secondly we need to ask whether only a Maori grouping having exclusive or shared mana whenua can be a body which the Maori Heritage Council considers appropriate to be consulted about a proposed authority, and to be nominated as a body to be advised of certain events during activities done pursuant to that authority. In other words, could there be a Maori grouping which has no claim to mana whenua but which nevertheless can claim a relationship, and interests, and to be directly affected by a Trust decision? 17 Ibid.

13 [38] The answer given by the Environment Court, and which I accept was properly reached, was that within the purpose and principles of the Act, Otaraua Hapu had a relationship with the defined area and its interest as a group directly affected by the authority was sufficient ground to include it in the conditions. Whether interest necessarily connotes a relationship with land [39] It is not necessary to decide whether relationship as used in the Act means a connection with land of greater significance than an interest in it. It is unnecessary because: The Environment Court found that Otaraua Hapu had both a relationship with, and an interest in, the defined area; and The words are used in the Act in different contexts. [40] Section 4 requires recognition of the relationship of Maori and their culture and traditions with their ancestral lands. That clearly extends to recognition of all Maori having such a relationship. Section 20, which deals with appeals, simply adds to the list of matters to which the Environment Court may consider appropriate to have regard: the interests of any person directly affected by the decision of the Trust. [41] Also on that list is the s 4 requirement. The two are not mutually exclusive. Although they might sometimes be in tension, they might equally overlap. (c) Recognising a relationship requires an assessment of Maori connection to ancestral lands [42] I have already dealt with this ground of appeal at [35] to [38] above. In short, the Act deals with heritage. It recognises that more than one group, Maori or not, might have connections to land. Conditions might be appropriate to differentiate between interested groups. The Environment Court might have appropriately made a condition such as the one Ngati Rahiri Hapu now accepts would suffice. However, it was not required to. The Environment Court was entitled to find that it was

14 appropriate to impose conditions that recognised the relationship of both Ngati Rahiri Hapu and Otaraua Hapu with the defined area. [43] I note that the Environment Court, to make it quite clear that nothing in its decision was intended to derogate from the relationship of either party (contemporary or historical) with the defined area, added a rider to the authority as follows: 18 The inclusion of the hapu of Ngati Rahiri and Otaraua in this condition is not to be taken as signifying that the NZHPT has any view as to whether either or both may have mana whenua over, or be tangata whenua of, the land the subject of this general authority, or that the land is within the rohe of either. (d) No basis for finding that Otaraua Hapu had a relationship with, or an interest in, the defined area [44] The fourth point of appeal (sufficiency of evidence) must also fail. I accept the respondent s submission that there was evidence before the Environment Court which could be relied upon to establish Otaraua Hapu s relationship with, and interest in, the defined area. The Environment Court has a very wide discretion as to what material it accepts as evidence. Here it had not only the evidence of Mr Doorbar for Otaraua Hapu, but also indications of its reliability through the concession made at the hearing before it that part of the defined area was within Otaraua Hapu s rohe. There was also evidence from the appellant s own witnesses as to the ancestral connections of Otaraua Hapu with land in the defined area. I cannot say that there was an error of law through the reaching of a conclusion based either on no evidence or on an unreasonable acceptance of evidence. [45] The appeal is dismissed. [46] If costs are to be claimed then memoranda must be filed by 15 November Brewer J 18 Ibid, at [41].