Hokio Trusts v Manawatu-Wanganui Regional Council
[2017] NZHC 1355
•21 June 2017
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CIV-2016-454-102 [2017] NZHC 1355
IN THE MATTER of the Resource Management Act 1991 AND IN THE MATTER
of an appeal under s 299 to the High Court on a question of law
BETWEEN
HOKIO TRUSTS Appellant
AND
MANAWATU-WANGANUI REGIONAL COUNCIL
First Resondent
MANAWATU-WANGANUI REGIONAL COUNCIL (AS RESOURCE CONSENT APPLICANT)
Second Respondent
Hearing
(inWellington):
15 May 21017 Counsel:
P D Taueki in Person with A Hunt, McKenzie Friend, for
Appellant
N Jessen and M W G Riordan for First Respondent
S Johnston for Second RespondentJudgment:
21 June 2017
JUDGMENT OF THOMAS J
Table of Contents
Introduction ............................................................................................................. [1]
Issues on appeal ....................................................................................................... [8] Land and Lake ownership.................................................................................... [17] The Hokio Trusts ................................................................................................. [17] Horowhenua 11 (Lake) Block.............................................................................. [21] Planning context .................................................................................................... [30] Section 274 parties and how the Environment Court dealt with them ............ [45] The expert technical evidence .............................................................................. [66] Conclusion.............................................................................................................. [76] Result ...................................................................................................................... [77]
HOKIO TRUSTS v MANAWATU-WANGANUI REGIONAL COUNCIL [2017] NZHC 1355 [21 June 2017]
Introduction
[1] On 22 September 2016, the Environment Court dismissed an appeal from a December 2015 decision of Independent Commissioners for the Manawatu- Wanganui Regional Council (the Council) acting as regulatory authority.1 The Commissioners had granted resource consents to the Council’s operational division pursuant to the Resource Management Act 1991 (the Act) for restoration activities at Lake Horowhenua (the Lake). The consents involved a fish pass at the Lake outlet to the Hokio Stream, a sediment trap on the Arawhata Stream prior to its discharge to the Lake and weed harvesting and associated activities within the Lake.
[2] The Hokio Trusts have appealed against that decision, limited to the consent for weed harvesting and associated activities. The Hokio Trusts have framed the question of law as follows:
As s 8 of the Resource Management Act 1991 requires all persons exercising functions and powers under this legislation to take into account the principles of the Treaty of Waitangi (Te Tiriti of Waitangi), does the [Environment Court] have the jurisdiction to disregard the Crown’s Treaty obligations by granting a resource consent for an activity taking place on ancestral lands that still belong to Appellants who are direct descendants of Taueki, the Rangatira who signed the Treaty of Waitangi on behalf of Mua-Upoko at Hokio Beach on 26 May 1840?
[3] There is no dispute that the Lake is a vital taonga to Muaupoko iwi. There is also no dispute that water quality in the Lake has been compromised for many years by the discharge of treated sewerage and inputs from the surrounding 61 kilometre catchment, including Levin’s storm water, and runoff from intensively cropped land and dairy farms.
[4] Cyanobacteria blooms, also known as blue/green algae blooms, are linked to the dense growth of lake weed generated by the large internal stores of nutrient in lake sediments from past and present inputs.2 These blooms at times mean the Lake
is closed to recreational use.
1 Hokio Trusts v Manawatu-Wanganui Regional Council [2016] NZEnvC 185 [Hokio Trusts
Environment Court decision].
2 Hokio Trusts Environment Court decision, at [2].
[5] Lake weed harvesting is proposed as the key measure to address toxic conditions for aquatic life from ammonia and cyanobacteria. It is designed to reduce the influence that weed has via photosynthesis on lake chemistry (particularly its pH level). It is also designed to reduce the amount of weed which dies back during the summer, thus limiting the release of phosphorus from lake sediments at a critical time. Boat ramps are proposed at two locations (Lake Domain and Arawhata Stream
mouth) to provide access for the weed harvester.3
[6] Acknowledging that weed harvesting involves these ancillary activities, for convenience I will simply refer to the weed harvesting and associated activities as “weed harvesting”.
[7] The trustees of the Horowhenua 11 Part Reservation Trust (the Lake Trust) support the proposed weed harvesting, as does the Muaupoko Tribal Authority (MTA). The Hokio Trusts do not. This fundamental difference of opinion is at the heart of this appeal.
Issues on appeal
[8] Appeals against Environment Court decisions are limited to questions of law.4 Appellate intervention is justified if the decision:5
(a) applied the wrong legal test;
(b) came to a conclusion unsupported by the evidence; (c) took into account irrelevant matters; or
(d) failed to take into account relevant matters.
3 Hokio Trusts Environment Court decision, above n 1, at [5].
4 Resource Management Act 1991, s 299.
5 Ayrburn Farm Estates Ltd v Queenstown Lakes District Council [2012] NZHC 735 at [34]; Hill Country Corp Ltd v Hastings District Council [2010] NZRMA 539 at [9]–[10]; and Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.
[9] Not only must there have been an error of law, but that error must have materially affected the result of the decision. The weight given to relevant matters is not a question of law.
[10] The Hokio Trusts’ appeal centres on the way in which the Environment Court dealt with the parties appearing at the hearing and how it assessed their evidence. The fundamental premise underlying the appeal is that the Environment Court’s weighing of the evidence breached s 8 of the Act, which in turn gave rise to a breach of the Treaty of Waitangi (the Treaty).
[11] Mr Taueki is the chair of the Hokio Trusts. He submitted the evidence brought by the Hokio Trusts deserved greater weight for a variety of reasons. First, he submitted the Hokio Trusts was the proper vehicle for representing the owners of the Lake. He relied on what he believed to be the correct interpretation of the Reserves and Other Lands Disposal Act 1956 (ROLD) as meaning the bed of the
Lake, the dewatered area and the chain strip are owned by the “Māori owners”.6 He
noted ROLD preserved the right of Māori to free and unrestricted use at all times of the Lake, surrounding land and “their fishing rights over the Lake and Hokio Stream”.7 He then said that the Hokio Trusts represent the majority of Māori owners:
... as their ownership of Horowhenua XI (Lake) is due to their ownership of land within the Hokio Block which is the largest block of land within Block XI.
[12] Secondly, Mr Taueki relied heavily on the fact that the trustees of the Hokio land are direct descendents of Taueki (variously spelt Taueka or Tauheke), the Rangatira who signed the Treaty on behalf of Muaupoko at Hokio Beach on 26 May
1840. He noted the strong whakapapa Hokio Trusts’ beneficiaries have to the area, and what he saw as their stronger claim to kaitiaki or tangata tiaki of the Lake. He contrasted this with the claims of the Lake Trust and MTA to that role, whose status he questioned due to what he perceived as their representatives’ lack of historical
knowledge. Mr Taueki drew a distinction between tangata whenua on the one hand
6 Reserves and Other Lands Disposal Act 1956, s 18, which contains special provisions relating to the Lake as discussed in the High Court decision Paki v Māori Land Court [2015] NZHC 2535, discussed below at [24].
7 Section 18(5).
and tauiwi on the other, and invited the Court to infer that representatives of the Hokio Trusts were the former, while the representatives of the Lake Trust and MTA were the latter.
[13] Building on that foundation, Mr Taueki then referred to art 2 of the Treaty, and the guarantee to the chiefs and tribes of New Zealand and their families of “the full exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession”. Mr Taueki claimed the weed harvesting would breach tikanga by disturbing habitats of threatened species, and the decision breached art 2 because it failed to guarantee undisturbed possession of fisheries associated with the Lake.
[14] The Council acknowledges that many historic problems have led to the current state of the Lake and that its cleanup is not a simple matter. The Council accepts the proposed activities would not achieve a complete solution, but says they are part of it. Mr Jessen, appearing for the Council in its regulatory capacity, stressed that the issue was whether the proposed activities assisted in achieving the sustainable management of the Lake. It was not, he emphasised, an issue of whether the Council had fully addressed past wrongs.
[15] Two aspects of the appeal advanced by Mr Taueki may be quickly put to rest. First, relying on the recent Supreme Court case of Proprietors of Wakatu v Attorney- General,8 Mr Taueki raised the prospect of fiduciary obligations upon the Crown with respect to the Māori owners of the Lake. Wakatu concerned obligations which arose from a particular set of circumstances. Whether or not similar circumstances arise in the present case was not argued before me. Such argument would, in any event, be better suited to proceedings other than resource consent appeals where legislation limits the matters available for consideration. Wakatu, therefore, can have no bearing on the outcome of this appeal.
[16] Secondly, underlying much of Mr Taueki’s criticism of the Environment
Court’s decision was what he considered a breach of Treaty obligations. However,
8 Proprietors of Wakatu v Attorney-General [2017] NZSC 17.
the Environment Court’s obligations with respect to the Treaty are prescribed by the Act, particularly pt 2, and specifically s 8. Section 8 requires the Environment Court to “take into account” the principles of the Treaty. I therefore consider Mr Taukei’s contentions as to breaches of Treaty obligations only insofar as they may also be breaches of s 8.
Land and Lake ownership
The Hokio Trusts
[17] The Hokio Trusts comprise three Trusts. All three were created by orders of the Maori Land Court,9 and were constituted as Ahu Whenua Trusts pursuant to s 215 of Te Ture Whenua Maori Act 1993.
[18] The Hokio Trusts administer Māori freehold land on behalf of a number of
beneficial owners. The details for each of the three Trusts are as follows:10
(a) Hokio A Trust, comprising approximately 1723 owners who hold shares in approximately 354.1717 hectares of land;
(b)Part Hokio A Trust, comprising approximately 1708 owners who hold shares in approximately 14.8485 hectares of land; and
(c) Hokio Māori Township Trust, comprising approximately 1836 owners
who hold shares in approximately 1.717 hectares of land.
[19] The lands administered by the Hokio Trusts were subdivided from the original Horowhenua 11 Block . Horowhenua 11 Block included the beds of the Lake and the Hokio Stream, and was granted to members of the Muaupoko iwi as the original owners. As such, the Hokio Trusts represent descendants of those
original owners.
9 Te Ture Whenua Maori Act 1993, s 211.
10 The number of owners and land area is approximate due to complexities arising from succession applications, applications pursuant to s 45 of Te Ture Whenua Māori Act 1993, and inaccurate survey records.
[20] The Hokio Trusts are administered collectively by the same group of trustees who are appointed by the Māori Land Court. Mr Taueki is the chairperson and, following a resolution at a meeting of the trustees, was authorised to represent the Hokio Trusts at the appeal. In relation to the appeal, it is appropriate to recite cl 2 of the Trust Orders which empowers the trustees to:
... represent the beneficial owners on all matters relating to the land and to the use and enjoyment of the facilities associated therewith. To act responsibly to protect the wahi tapu, taonga tapu and taonga located on the land, and to maintain lines of communication with Tangata Whenua to this land.
Horowhenua 11 (Lake) Block
[21] The Horowhenua 11 (Lake) Block (the Block) is 400.9234 hectares of Māori freehold land also subdivided from Horowhenua 11 Block. It consists of the bed of the Lake, together with what is now known as the de-watered area (a further one chain strip of land around the original margin of the Lake and the bed of the Hokio Stream and certain adjoining lands).
[22] The Block has long been a source of contention. For over 100 years a series of competing claims relating to the Block (and the surrounding land) have been before the Māori Land Court (and its predecessor the Native Land Court), the Māori Appellate Court, and other courts of general jurisdiction.11 The status of the Block was most recently considered by the Māori Appellate Court in 2016.12
[23] The Block is currently vested in the trustees of the Lake Trust. The trustees hold the Block on behalf of the beneficial owners, that is, members of Muaupoko iwi. There is considerable overlap between the beneficiaries of the Lake Trust and those of the Hokio Trusts. The Māori Appellate Court describes the Lake Trust as follows:
[8] The trust is somewhat unique in that it is not an ahu whenua trust,13 or a Māori reservation trust,14 which are commonly constituted to administer Māori land. Rather, this trust was established by the Native Land Court on
11 Taueki v Horowhenua 11 Part Reservation Trust, Māori Appellate Court A20150006419, Appeal
2015/18, 12 April 2016, at [6].
12 Taueki v Horowhenua 11 Part Reservation Trust, above n 11.
13 Te Ture Whenua Māori Act 1993, s 215.
14 Section 338(7).
19 October 1898 per s 7 of the Native Trusts and Claims Definition and
Registration Act 1893.15
[24] The High Court became involved in 2012 when a member of Muaupoko iwi challenged, inter alia, the legal status of the Lake Trust.16 The Court found that the Māori Land Court had the power to issue terms of trust for the Lake Trust as it did in
2012. On this point, Clifford J said:
[83] ... I conclude that the power to declare terms of trust to provide a trust over Māori land with effective management and administrative rules is a reasonable and necessary incident of the role of the Māori Land Court. More particularly, I am also satisfied that there is in s 64A of the Trustee Act specific statutory provision of such a power.
[84] I am, therefore, satisfied that the Māori Land Court had the power to
issue terms of trust for the Lake Horowhenua Trust as it did in the 2012
Decision. ...
[25] The legal status of the Lake Trust was confirmed and found to be properly constituted.
[26] Clause 4.1 of the Lake Trust’s Trust Order states:
4.1 General
Subject always to the objects of the Trust and in accordance with the powers conferred by this trust order, the Trustees are empowered to do all or any of the things that the Trustees would be entitled to do if they were the absolute owners of and beneficially entitled to the Trust Property PROVIDED HOWEVER that the Trustees shall not alienate by way of sale or gift the whole or any part of the Land.
[27] Relevant too is the observation of the Supreme Court in Taueki v R:17
While [ROLD] reserved to the Maori owners, of whom Mr Taueki was one, the “free and unrestricted use” of the lake and domain, this right of access to the lake and land does not confer any control over, or amount to possession of, the same especially given the nature of the land as a public domain.
[28] The Mr Taueki in that decision is the same Mr Taueki who is chairman of the
Hokio Trusts.
15 Horowhenua 11 (1898) 37 Otaki Mr Butler 10.
16 Paki v Māori Land Court, above n 6.
17 Taueki v R [2013] NZSC 146, [2014] 1 NZLR 235 at [67].
[29] This is important context given some of the issues raised by Mr Taueki at the appeal.
Planning context
[30] Activities associated with weed harvesting, including vehicle access and boat ramps, were to be considered as non-complying activities. Before addressing the effects of the activities, the Environment Court addressed the planning context contained in several planning documents. These included the National Policy Statement – Freshwater Management (NPS-FM), the Combined Regional Policy Statement and Regional Plan (known as the One Plan) and the relevant provisions of s 104 of the Act as it applied to the status of the consents sought.
[31] These planning documents provided the wider context within which the application and appeal to the Environment Court were to be considered. The Court returned to those planning instruments towards the end of its decision after it had evaluated the evidence. It then specifically addressed pt 2 of the Act and in particular ss 5, 6 and 7.
[32] An analysis of the relevant statutory instruments is important because it provides the framework for a consideration of any applications. As the Environment Court noted, s 104D applied given the application concerned non-complying activities.18 That meant the Environment Court had to be satisfied either any adverse effects would be minor or the proposed activity was not contrary to the objectives and policies of the One Plan. If the test of s 104D was met, s 104 applied.
[33] Section 104 of the Act sets out matters to which the Court must have regard when considering an application for resource consent. Considerations under s 104 are subject to pt 2 of the Act, which sets out the purposes and principles of the Act. Section 8,which is the focus of this appeal, is contained in pt 2.
[34] Mr Jessen noted the traditional approach for decision-makers under s 104 was to apply the s 104 criteria with recourse to pt 2 as part of the overall broad
18 Hokio Trusts Environment Court decision, above n 1, at [21].
assessment. He discussed the impact of the Supreme Court decision in Environmental Defence Society Inc v New Zealand King Salmon Co Ltd.19 When determining a plan change, the Supreme Court held there was no need for a Board of Inquiry to have general recourse to pt 2 in giving effect to a higher order statutory document which was itself developed in accordance with pt 2 of the Act. In Mr Jessen’s submission, relying on the recent High Court decision in RJ Davidson Family Trust v Marlborough District Council,20 that approach could legitimately apply to a resource consent decision under s 104.
[35] The Supreme Court in King Salmon analysed pt 2 of the Act, noting s 5 sets out the core purpose of the Act, which is supplemented by ss 6–8. Section 6 requires decision-makers to “recognise and provide for” particular matters, s 7 requires decision-makers to “have particular regard to” other matters, and s 8 requires decision-makers to “take into account” the principles of the Treaty.
[36] The Supreme Court observed:21
The wider scope of s 8 reflects the fact that among the matters of national importance identified in s 6 are “the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga” and protections for historic heritage and protected customary rights and that s 7 addresses kaitiakitanga.
[37] Given that context, Mr Jessen submitted the obligation in s 8 of the Act can in this case be considered to have been achieved by the planning documents relevant to the consideration of the application. The analysis is set out in the following paragraphs.
[38] The Regional Policy Statement (RPS) achieves the purpose of the Act by providing an overview of the resource management issues of the region and policies and methods to achieve integrated management of natural and physical resources.22
An RPS must be prepared and changed in accordance with the provisions of pt 2.23
Chapter two of the One Plan, which is the combined RPS and regional plan,
19 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38.
20 RJ Davidson Family Trust v Marlborough District Council [2017] NZHC 52.
21 King Salmon, above n 19, at [27].
22 Resource Management Act 1991, s 59.
23 Section 61.
addresses issues of significance to Māori. It begins by recognising the region’s hapū and iwi, including Muaupoko, saying they are an integral part of the regional community. The chapter also recognises relevant key principles of the Treaty. Water quality and demand are identified as a resource management issue of significance to hapū and iwi. The Lake is specifically recognised as having suffered and still
suffering degradation, and is considered culturally unclean.24 The objective is to
have regard to the mauri of natural and physical resources to enable hapū and iwi to provide for their social, economic and cultural wellbeing, including giving particular regard to kaitiakitanga.25 Policy 2-4 provides that specific issues noted in table 2.1 must be addressed. The Lake and Hokio Stream are included in the table, with an identification of the relevant part of the One Plan where the issue is outlined in more detail.
[39] Chapter 5, still within the RPS section of the One Plan, identifies as an objective that surface water bodies and their beds are provided for in a manner which safeguards their life-supporting capacity. It also recognises and provides for certain values which include the value of the Lake’s mauri. A further relevant objective is to enhance that water quality generally. The method of doing so is set out.26 Those responsible include the Regional Council and iwi. A target is set that the Lake is actively managed, including protection and enhancement measures.
[40] The Lake Horowhenua Accord (the Accord) is dated August 2013. It is not a statutory document. The parties to the Accord are the Lake Trust, the Horowhenua Lake Domain Board,27 the Horowhenua District Council, Horizons Regional Council and the Department of Conservation. The vision of the Accord is to collaborate, progress and resolve the condition of the Lake. The background to the Accord recites that the five parties have agreed to work together to provide leadership, halt the Lake’s degradation, and put in place remedial measures to return the Lake to a
condition in keeping with its status as a taonga. The management actions to achieve
24 Issue 2-1.
25 Objective 2-1.
26 Method 5-6 regarding the Lake and other coastal lakes.
27 The Horowhenua Lake Domain Board is a statutory board appointed under the Reserves and Other Lands Disposal Act 1956. The Department of Conservation provides the chair, the Horowhenua District Council appoints three members and the Muaupoko iwi appoints four representatives.
the management goals include the removal of sediment inputs, weed harvesting and fish paths at the weir.
[41] The Lake Horowhenua Accord Action Plan 2014–2016 (the Action Plan) includes the same five foundation partners who say they intend collaboratively to pursue the objectives and goals of the Accord. The Action Plan sets out the key issues as including poor water quality, sources of nutrients and contamination, cyanobacteria blooms, excessive lake weed, high turbidity and sediment inputs, declining fishery, pest fish and overlapping responsibilities. Included as actions are: removal of sediment inputs; lake weed harvesting; and installation of a fish pass at the weir.
[42] I accept Mr Jessen’s submission that, analysed in this way, it can be seen that the statutory instruments and agreements made under them can be considered consistent with pt 2 of the Act.
[43] The decision in Davidson28 nevertheless sits in contrast with another High
Court decision, New Zealand Transport Authority v Architecture Centre Inc.29
New Zealand Transport Authority analysed similar statutory provisions in light of King Salmon30 and came to a different conclusion. It is unnecessary for me to decide whether, if environmental values are sufficiently accounted for in planning documents which have more specific relevance to the resource in question, the obligations of pt 2 are able to be considered already met for the purposes of s 104. Whichever of Davidson and New Zealand Transport Authority is correct, King Salmon made clear pt 2 is still relevant in assessing resource consents in certain specific circumstances – including those relevant to the current appeal. As the Supreme Court observed in King Salmon:31
... the obligation in s 8 to have regard to the principles of the Treaty of Waitangi will have procedural as well as substantive implications, which decision-makers must always have in mind ...
28 Davidson, above n 20.
29 New Zealand Transport Agency v Architectural Centre Inc [2015] NZHC 1991, [2015] NZRMA
375.
30 King Salmon, above n 19.
31 At [88].
[44] To the extent the appeal is based on the question of whether the Environment Court fulfilled its obligation to have regard to the principles of the Treaty, pt 2, and in particular s 8, remains relevant to its decision. With that in mind, I turn now to examining the evidence brought before the Court, and how it was treated.
Section 274 parties and how the Environment Court dealt with them
[45] In his submissions, Mr Taueki criticised by the approach taken by the Environment Court in dealing with the s 274 parties. Section 274 allows certain persons with a particular interest in the proceedings, such as those who made submissions on the original application, to become party to proceedings at the Environment Court.32 Within certain limitations, s 274 parties are then able to
appear and call evidence relevant to the matter.33
[46] The Hokio Trusts were a s 274 party to the appeal in the Environment Court. Other s 274 parties included: the Hokio Environmental and Kaitiaki Alliance (HEKA) Inc and Anne-Marie Hunt, who supported the position taken by the Hokio Trusts; and the Lake Trust, Muaupoko Cooperative Society Ltd, MTA and Jonathan Procter, who supported the Council as applicant.
[47] Prior to the Environment Court hearing, but after having read the briefs of evidence to be advanced at the hearing, the Court issued a Minute. In the Minute, the Environment Court Judge recognised the importance of historical matters, ownership, consultation and mandates, saying they were significant both for the parties and as important background material for the Court. He went on to say:34
… I consider that they are diversions from the determinative matter before the Court, namely whether or not the specific proposals under appeal achieve the sustainable management of Lake Horowhenua. … [The] evidence on the topics identified … should form part of the record but should not be subject to cross examination. On that basis I understand that the primary matter in evidential dispute will relate to the scientific/technical aspects of the weed mowing proposal advanced by Dr Gibbs as opposed to Mr Chisholm’s no mowing solution.
32 Resource Management Act 1991, ss 274(1)–(3).
33 Sections 274(4)–(4B).
34 Minute of Judge Dwyer as cited in Hokio Trusts Environment Court decision, above n 1, at [10].
[48] Mr Chisholm appeared as the expert on behalf of the Hokio Trusts whereas
Dr Gibbs appeared for the Council as applicant.
[49] Furthermore, at the opening of the hearing, the Environment Court directed that no priority would be given to the evidence from any individual Māori group or groups. The Court considered they all had a relationship to the Lake and its surrounding land as ancestral land and water.
[50] At the High Court appeal hearing, Mr Taueki recanted somewhat his initial criticism of the Environment Court and its treatment of the s 274 parties. He acknowledged the Court fairly allowed all parties to present their evidence. His complaint, however, remained as to the weight given to that evidence.
[51] Mr Taueki appeared to be deeply affronted that Dr Procter, when asked at the Environment Court hearing, could not identify the person who signed the Treaty on behalf of Muaupoko. Mr Taueki was equally unhappy that Dr Proctor apparently denied there were any battles on the Lake, which Mr Taueki said was the site of a significant battlefield. Both of these matters, said Mr Taueki, had been confirmed by research undertaken by the Waitangi Tribunal.
[52] The Environment Court recognised there are more than 12 distinct iwi and several hapū partly or wholly within the Manawatu region. It acknowledged the Lake is of high physical, spiritual and cultural significance to Muaupoko and Ngāti Pareraukawa, saying:35
All parties to the appeals attest to the lake and its surrounds historically being the food basket of Muaupoko. The cultural food available to local iwi and hapu pre-European included kereru (native wood pigeon), kaka (native parrot), kakahi (freshwater mussels), patiki (flounder), koura (freshwater crayfish), tuna (eels), inanga (adult whitebait) and ngaore (immature whitebait).
[53] The Environment Court then set out in quite some detail the evidence given by the s 274 parties. This included the evidence relating to the history of the Lake area, the geniality of the various witnesses and the disputes between them. For
example, Ms Taueki, who gave evidence for the Hokio Trusts, criticised the
35 At [119].
consultation which had been carried out, considering it was with the Lake trustees only rather than greater Muaupoko. Mr Taueki also gave evidence and outlined his concerns that the Hokio Trusts’ beneficiaries should be recognised in any consultation which affected the Lake. The Environment Court noted Mr Taueki questioned the Lake trustees’ authority to speak for Muaupoko, and said his whanau had always maintained ahi kā over Muaupoko lands. He regarded the Lake as wāhi tapu.
[54] It is clear that the Environment Court not only acknowledged but gave weight to the evidence put forward on behalf of the Hokio Trusts. The Environment Court considered the opinions about the effects of weed harvesting, saying:
[127] Mr Taueki asserted that the infrastructure required for access to the lake for weed harvesting would be offensive to the whanau kaitiakitanga values and impact on waahi tapu at the Lake Domain and Arawhata Stream sites. Weed harvesting had the potential to impact native fish, which are taonga, and the nesting of birds using the lake. Mr Taueki considered the risk of the lake permanently changing to an undesirable algal dominated state identified by Mr Chisholm as having the potential to have very significant effects on the environmental and cultural health of the lake. We have considered this risk in detail earlier in this decision.
[55] The Court noted, however, that the alternative options for removal of nutrients from the Lake offered by Mr Taueki neither provided any specifics, nor credible technical evidence as to how removal could be achieved.
[56] The Court then addressed the evidence of Mr Sword, a trustee and chairman of the Lake Trust, and chair of the Accord. Mr Sword gave evidence of the makeup of the Lake Trust and the Lake Trust’s long term plan. The Court recorded the consultation practices and information sharing adopted by the Lake Trust since 2012 and Mr Sword’s acceptance that restoration of the Lake will take a long time,
saying:36
Overall the cultural and spiritual benefits to Muaupoko, to be derived from the ecological improvements to the Lake expected from these interventions, cannot be underestimated. It has long been the desire of Muaupoko to regain access to a significantly valuable resource to sustain families and marae. Improved Lake conditions means improved access by Muaupoko to their fishery and their cultural sites of significance. Muaupoko will be able to
36 Evidence of MJ Sword as cited in Hokio Trusts Environment Court decision, above n 1, at [133].
swim in the Lake, gather kai and be able to host events more easily and more regularly for example using Kurahaupo waka to celebrate events. Hapu will be able to enhance their mana through access to kai from the Lake as part of undertaking their manaaki toward their manuhiri and to enhance and support gatherings on the marae.
[57] Mr Warrington is chairman of the MTA, a trustee of the Lake Trust and an owner in the Hokio Trusts. Although Mr Taueki indicated that he does not accept the position, the MTA manages Treaty claims, resource management issues, relationships with key agencies and is the mandated authority for Muaupoko regarding consultation with local authorities and applicants under the Act. Mr Warrington considered that, although the current focus is the restoration of the Lake, the ultimate intention is for the Lake once again to be the provider of food and sustenance, physically and spiritually for Muaupoko, similar to the position under their ancestors. For this reason, the MTA supported the Accord, the implementation of the Action Plan and the activities under consideration in this appeal.
[58] Dr Procter, a trustee of the Lake Trust whose tribal affiliations include Muaupoko, described s 18 of ROLD as recognising the partnership between the Lake trustees and the Crown in respect of co-management of the Lake. He considered that meant the Lake trustees should not have to apply for resource consents. In any event, he supported the applications. His family had offered the waka landing sites on their property as access for the weed harvester, considering the benefits gained from the proposed weed harvesting far outweighed the impact of modification of the
access sites. He told the Court:37
It is the mauri which binds the physical, traditional and spiritual elements of all things together, generating, nurturing and upholding all life. That mauri is the most crucial element that binds Muaupoko throughout time with Lake Horowhenua/Punahau, a relationship that spans hundreds of years of unbroken occupation and use. The use of the Lake and the way Muaupoko has treated it has changed and developed over time to ensure that it sustainably supports the Iwi. The mauri of the Lake has also been managed to ensure the wairua or the health of Muaupoko and the people was maintained.
[59] The above summarises what the Environment Court said about the evidence of those s 274 parties. Others also gave evidence at the hearing. It is clear the Court
carefully evaluated the evidence. It recognised the historical and cultural
37 Evidence of J Proctor as cited in Hokio Trusts Environment Court decision, above n 1, at [142].
significance of the Lake and indeed that all parties had a common desire to see the ecology and mauri of the Lake restored to an acceptable state. The Court acknowledged the differing views on how restoration should be achieved. The Court nevertheless reminded itself that its own evaluation was directed to determining whether the aim to improve the ecological and cultural health of the ecosystem of the Lake was achieved within the sustainable management purpose of the Act. In its evaluation, the Environment Court said:
[154] No adverse effect on tangata whenua values has been substantiated in evidence from the Hokio Trusts witnesses. The Lake Trust and other s 274 parties presented cultural evidence that fully supported the proposed restoration activities and advised that the positive effects will be beneficial to the re-establishment of strong tangata whenua relationships with Lake Horowhenua.
[155] The water quality and subsequent ecological benefits of the proposals will contribute to the restoration of the mauri of Lake Horowhenua consistent with Objective 2-1 and Policy 2-3 of the One Plan. The ongoing involvement of Muaupoko as tangata tiaki through the offices of the Lake Trust fosters the relationship of iwi with their ancestral land and water and the taonga that is Lake Horowhenua. Waahi tapu sites identified at the lake are not affected by the construction of the access boat ramps or the weed harvesting operation and an Accidental Discovery Protocol involving the Lake Trust on behalf of the beneficial owners of the lake will ensure that adequate procedures are in place in the event waahi tapu or wahi tupuna are discovered consistent with Policy 2.2 of the One Plan.
[60] From this analysis it is clear that the Environment Court carefully considered the evidence before it in addressing the question of whether there were adverse effects from the proposals on tangata whenua values.
[61] Mr Taueki is rightly proud of his whakapapa. It comes as no surprise that, given his forebear was a signatory to the Treaty, Mr Taueki would have a particular focus on the Treaty and ensuring its provisions are complied with. It does not mean, however, that Mr Taueki’s opinion should carry more weight than others’ as to what should happen to the Lake.
[62] As against the views in opposition to the applications, the views of others in support of the applications were entitled to have their opinions taken into account. They considered kaitiakitanga had been given appropriate recognition and that the principles of the Treaty had been recognised in the various aspects of the
applications. In their opinion, the activities would aid the Lake Trust in its role as
tangata tiaki and significantly contribute to Muaupoko’s relationship with its taonga.
[63] I am satisfied the Environment Court did not fail to discharge its obligations under s 8 with respect to the s 274 parties. The weight it gave to the submissions of those parties was not in breach of the requirement to take into account the principles of the Treaty.
[64] The Hokio Trusts also dispute the condition to the consent relating to the discovery of any archaeological items when the work to implement the consent is undertaken, in particular the construction of boat ramps (the Accidental Archaeological Discovery Protocol (the Protocol)). The Protocol makes provision for all artefacts or taonga tūturu to stay in possession of the Lake Trust and the MTA. Mr Taueki submitted the excavation of the area and placing of artefacts into the possession of the Lake Trust or MTA also contravened the Crown’s Treaty obligations.
[65] The Council in its regulatory capacity, following the recommendation of its planners, amended the original decision to include the Hokio Trusts’ involvement in the appointment of tangata tiaki. This was opposed by the Lake Trust on the basis of its status as representatives of the beneficial owners of the Lake. The Environment Court accepted Mr Sword’s submission that inter-iwi/hapū relationships were a matter for the iwi to determine, not the Court. The Court expressed itself satisfied with the Protocol as robust and appropriate for its purpose, saying implementation of the Protocol on Lake Trust land was a matter for the Lake Trust. Given the context of the issues which had arisen between the various s 274 parties, that approach cannot be criticised. I find no error of law in the Environment Court’s consideration of the Protocol.
The expert technical evidence
[66] The Environment Court undertook a detailed analysis of the expert evidence presented to it. The Environment Court described the extensive technical evidence it heard from experts called by the Council as applicant, the Council in its regulatory role, and from Mr Chisholm, the environmental consultant for the Hokio Trusts.
[67] The Environment Court heard evidence about the rationale for weed harvesting and proposed methodology, including the consideration of a range of alternative options and the evidence as to why the weed harvesting was the most effective approach.
[68] The Lake currently flips between two potentially stable states on an annual basis. The algal dominated state develops in summer and then resets to the macrophyte dominated state in winter. The annual harvesting of a proportion of the weed biomass was proposed by way of weed harvesting as the most effective way of preventing toxic cyanobacteria blooms. Areas of weed beds were to be cut at around
30 centimetres above the Lake bed and the cut material conveyed to a barge for transfer to shore for subsequent disposal. Boat ramps were proposed at two places for harvester access and transfer of harvested weed to the shore for temporary storage and final removal.
[69] At the hearing into this appeal, Mr Taueki said the primary concern of the Hokio Trusts was the risk of the Lake “flipping” permanently to a toxic algal state. He noted that all the experts considered the level of risk to be unknown. The Hokio Trusts’ position was that the risk of flipping contravenes the Crown’s Treaty obligations because it would breach tikanga and disturb Hokio Trusts’ fishery rights.
[70] The Environment Court identified the issues raised by Mr Chisholm who challenged the Council’s analysis of the effects of the weed harvesting application, in particular increased turbidity during harvesting and sediment disturbance enhancing nutrient recycling and the risk of permanent flipping.
[71] The experts had agreed when caucusing that increases in turbidity could result from weed harvesting and as a consequence an adaptive management approach was considered appropriate. This was described as a conservative approach and moved away from that taken in the Commissioners’ decision. The Environment Court correctly applied the test set out by the Supreme Court on whether an adaptive
management approach was appropriate.38 The Environment Court concluded that the proposed adaptive management approach adequately addressed the test:39
The uncertainties around plant response to harvest and sediment resuspension will largely be eliminated through monitoring during the trial year and the ongoing very low risk of permanent flipping minimised by the conditions set.
[72] Importantly, the Environment Court noted the “worst case” scenario would be for the maintenance of the status quo. The two experts for the Council acknowledged that the continuation of the annual cycle of lake flipping, which occurs now, had a very low risk of generating a permanent flip to an algal dominated state. In their opinion, the risk was not increased by the intervention of weed harvesting, nor did it go away. However, it was for that reason that the adaptive management approach was proposed.
[73] The Environment Court then addressed the proposed activities against the One Plan, noting the weed harvesting proposal implemented Action 9 of the Action Plan and was an obligation of the Council under the One Plan. The Court concluded the weed harvesting was consistent with the objectives and policies of the One Plan which in turn gave effect to the relevant provisions of the NPS-FM and its national objectives framework.
[74] As the Environment Court noted when undertaking its overall evaluation, there were differing views as to how restoration of the Lake should be achieved. The Court concluded:
[153] The weight of expert evidence supports a conclusion that the proposed activities will have no adverse effects on the Lake Horowhenua that are more than minor. We have found earlier that any residual low risk of a permanent shift in trophic status to one dominated by algae or cyanobacteria will be further reduced by the cautious adaptive management approach proposed through the conditions of consent.
[75] It is clear the Environment Court applied the correct legal tests when taking into account the expert evidence provided by the parties in assessing the application.
38 Sustain Our Sounds Inc v New Zealand King Salmon Company Ltd [2014] NZSC 40, [2014]
1 NZLR 673 at [129].
39 Hokio Trusts Environment Court decision, above n 1, at [107].
In so doing, it fulfilled its procedural obligations under s 8. The claim that the Environment Court erred in law because the outcome of the decision would breach tikanga and art 2 of the Treaty is undermined by two points. First, evidence presented to the contrary by other parties made the assessment a question of weight rather than a question of law, and thus one that cannot be addressed by this Court on appeal. Secondly, as noted above, the Environment Court is not properly concerned with giving effect to the Treaty, but taking into account the principles of the Treaty. The process adopted shows there was no error of law on the part of the Environment Court.
Conclusion
[76] To answer the question of law brought before me, the Environment Court did not improperly disregard the Crown’s Treaty obligations. It considered those obligations within the limits of the legislative framework under which it operates. With respect to s 8 and taking into account the principles of the Treaty, I am satisfied the Environment Court properly dealt with and considered the evidence of the s 274 parties and their expert witnesses. It properly directed itself when considering the law and the evidence. I can identify no error of law by the Environment Court in coming to its decision.
Result
[77] For these reasons, the appeal is dismissed.
[78] If the respondents seek costs, any submissions are to be filed and served within 28 days, with any response from the Hokio Trusts 14 days thereafter.
Thomas J
Solicitors:
Cooper Rapley Lawyers, Palmerston North for First Respondent
Fitzherbert Rowe, Palmerston North for Second Respondent
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