Hawke's Bay Regional Council - [2023] NZHC 3343

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 3343
Decision Date: 23 November 2023

CaseChat Overview and Summary

Ngā Kaitiaki o Te Awa o Ngaruroro, a group representing several hapū from Central Hawke’s Bay, sought special leave to bring an appeal out of time against a water conservation order recommendation made by the Environment Court. The appeal related to a recommendation for a water conservation order concerning the Ngaruroro and Clive Rivers. Ngā Kaitiaki was dissatisfied with the proposed water conservation order, particularly clause 12.1, which they believed did not adequately provide for historical associations, the interests of those they represent, or kaitiakitanga related to the awa. They sought modifications to this clause to better reflect the rights, duties, and obligations of Māori landowners, iwi, and hapū.

The legal issues the court had to decide included whether the prescribed time for appealing the Environment Court’s recommendation should be extended. The court considered various factors in making this determination, including the length and reasons for the delay, the conduct of the parties, any prejudice or hardship to the respondents, the significance of the issues raised, and the merits of the proposed appeal. The court found that while there had been a significant delay, the reasons were understandable given Ngā Kaitiaki’s lack of resources and counsel, compounded by the impact of Cyclone Gabrielle. The court also noted that Ngā Kaitiaki had been making efforts to engage counsel and had not engaged in any conduct that would disentitle them from proceeding with the appeal.

The court concluded that the issues raised by Ngā Kaitiaki were significant, extending beyond their own interests, and that the proposed appeal was not without merit. Therefore, the court exercised its discretion to extend the time prescribed for appealing the Environment Court’s recommendation. It ordered that the time for bringing the appeal was extended until 10 working days from the date of the decision. The court also noted that Ngā Kaitiaki’s appeal should be filed as a separate proceeding, ideally to be case-managed and heard alongside the Hawke’s Bay Regional Council’s appeal. The court decided not to make an award of costs at that point but left open the possibility for a future application at a case management conference.

Orders